
Class, JC lAAA 
Book .L^i- 



GoEyrightN". 



COPYRIGHT DEPOSIT. 



ELEMENTS OF POLITICAL SCIENCE 



ELEMENTS OF 

POLITICAL SCIENCE 



BY 



STEPHEN LEACOCK, B.A., Ph.D. 

w 

HEAD OF THE DEPARTMENT OF ECONOMICS AND POLITICAL 
SCIENCE, McGILIi UNIVEKSITY, MONTKEAL 



REVISED EDITION 




BOSTON, NEW YORK, AND CHICAGO 
HOUGHTON MIFFLIN COMPANY 



i^\i 





M- 



COPYRIGHT, 1906 AND I913, BY STEPHEN LEACOCK 
ALL RIGHTS RESERVED 



©CI.A350145 



CONTENTS 

PART I. — THE NATURE OF THE STATE 

I. PoLiTiCAii Science, the Theory of the State 

1. Definition and Scope of Political Science .... 3 

2. Relation to Other Sciences 6 

3. Meaning- of the State ; its Essential Attributes . . 12 

4. The Distinction between State, Society, Govern- 

ment, and Nation 16 

5. The State and a Common Faith 19 

6. The Ideal State 20 

II. The Origin of the State; Fallacious Theories 

1. Theory of the Social Contract 22 

2. Application made of the Theory by Hobbes, Locke, 

and Rousseau 27 

3. Criticism of the Theory 31 

4. The Theory of Divine Origin 34 

5. The Theory of Force 35 

III. The True Origin of the State 

1. The Historical or Evolutionary View of the State . 41 

2. The Patriarchal and Matriarchal Theories .... 42 

3. Course of Development : the Aristotelian Cycle . . 46 

4. Military and Economic Factors 47 

5. Some General Features of Political Evolution . . 48 

IV. The Sovereignty of the State 

1. Analysis of the Conception of Soverei_Q;-nty ; Meaning- 

of Law and Rig-ht 52 

2. The Location of Sovereig-nty in Existing Govern- 

ments 56 

3. Criticism of the Doctrine of Sovereignty ; Sir Henry 

Maine's Objections 58 

4. Theory of Political Sovereignty 63 

5. Criticism 67 

6. Dual or Divided Sovereignty 69 



vi CONTENTS 

V. The Liberty of the iNDrvroTJAL 

1. Formulation of the Idea of Civil Liberty ; its Depend- 

ence on a Coercive Sovereig-n Power 71 

2. Special Senses sometimes attached to the Term 

Liberty 75 

3. Organic Theory of the State 79 

4. Criticism 80 

5. Elaborate Analogies of Spencer, Schaffle, etc.; the 

Personality of the State 82 

6. Criticism 86 

VI. Relation of States to One Another 

1. External Aspect of the State ; Regulation of its Con- 

duct towards Other States 89 

2. Evolution of International Relations ; First, Second, 

and Third Periods 91 

3. Scope and Content of International Law .... 99 

4. Propriety of the Term 100 

5. International Arbitration 104 

VII. The Form of the State 

1. The Classification of States according to their Form ; 

Aristotle's Divisions 110 

2. Later Classifications ; Montesquieu, Rousseau, Blunt- 

schli, etc 116 

3. Practical Classification of Existing States .... 118 

4. The Constitution ; Written and Unwritten Constitu- 

tions 121 

5. Origin of Written Constitutions 123 

6. The Distinction between States with Written and 

those with Unwritten Constitutions an Illusory 
Basis of Division 128 

7. Scope of the Constitution 132 

8. Amendment 134 

PART II. — THE STRUCTURE OF THE GOVERNMENT 

I. The Separation of Powers 

1. Nature of Executive, Legislative, and Judicial Power 141 

2. Theory of the Separation of Powers; Montes- 

quieu 143 

3. Influence of this Theory in America and France . . 145 



CONTENTS vii 

4. Extent of its Application in Existing Govern- 

ments 148 

5. Continental Administrative Law 151 

6. General Criticism of the Theory of the Separation of 

Powers 151 

n. The Legislatuke 

1. The Legislature ; General Requisites, Procedure, etc. 154 

2. The Bicameral System ; Reasons for its Adoption . 159 

3. Composition of Upper Houses 162 

4. Distribution of Power between the Two Houses . . 169 

5. Direct Legislation ; the Initiative and the Referen- 

dum 174 

ni. The Executive 

1. Concentration of Authority the First Requisite of the 

Executive 181 

2. Methods of Appointment ; Hereditary Executives . 184 

3. Elective Executives 187 

4. Presidential and Parliamentary Government . . . 191 

5. Subordinate Officials and the Executive ; the Civil 

Service 197 

rV. The Judiciary and the Electorate 

1. The Judicial Office and its Tenure 207 

2. The Relation of the Courts to the Executive and to 

the Legislature 210 

3. Administrative Law and Administrative Courts . . 216 

4. The Electorate : Evolution of So-called Universal 

Suffrage ; the Present Suffrage in Leading Coun- 
tries 218 

5. Criticism of Existing Systems ; the Case of Women, 

of Negroes, etc 224 

6. Representation of Minorities 228 

V. Federal Government 

1. Importance of the Federal Principle ; its Historical 

Development 233 

2. The Different Kinds of Federations 237 

3. Sovereignty in a Federal State 240 

4. Utility of the Federal Principle in effecting a Com- 

promise 243 

5. Distribution of Power in Federal States .... 244 

6. Conclusions 253 



viii CONTENTS 

VI. Colonial Government 

1. The Acquisition of Dependencies 258 

2. Colonies of the Ancient World 261 

3. Colonial Expansion after the Discovery of the Sea 

Route to the East Indies and the Discovery of 
America ; Spanish Colonial System .... 262 

4. Colonial Policy of England and France in the Seven- 

teenth and Eighteenth Centuries 264 

5. The American Revolution 268 

6. Alteration of British Colonial Policy in the Nine- 

teenth Century ; Establishment of Self-Govern- 

ment 271 

7. Present British System of Colonial Administration 275 

8. Imperial Federation 283 

9. Recent Colonial Expansion of European States . . 285 
10. The Dependencies of the United States 287 

Vn. Local Government 

1. Local and Central Government Distinguished . . . 292 

2. Areas of Local Government ; the United States, 

France, England 296 

3. Composition and Powers of Local Governing Bodies ; 

the United States 301 

4. England 308 

5. France 311 

6. Prussia 315 

7. Local Taxation ; the Property Tax of the United 

States 316 

8. Systems of Local Taxation in Other Countries . . 321 

9. Reform of the American System 328 

VIII. Party Government 

1. Conflict of Opinion on the Merits of Party Govern- 

ment 332 

2. Origin and Development of the Party System in 

England 336 

3. Origin and Growth of Political Parties in the United 

States 338 

4. The Organization of American Political Parties . . 340 

5. Reform of the System 345 

6. Party Machinery in Great Britain 348 

7. The Party Groups of Continental Europe .... 350 



CONTENTS ix 

PART III. — THE PROVINCE OF GOVERNMENT 

I. Individualism 

1. The Individualistic Theory of the Functions of Gov- 

ernment 357 

2. Individualism as based on a Theory of Justice . . 359 

3. Based on a Theory of Profitability ; the Doctrine of 

Laissez Faire 363 

4. Based on a Biological Analogy : the Survival of the 

Fittest 366 

5. Conflicting Forces 368 

II. Socialism 

1. The Socialistic Theory ; its Destructive Criticism . 371 

2. The Constructive Programme of Socialism . . . 375 

3. The German Social Democrats 378 

4. Socialism in England and America 382 

III. The Modern State 

1. The New Environment 386 

2. Theory of Protection to Industry 389 

3. Modern Protective Tariffs 393 

4. Interference with Competitive Prices ; Trust and 

Railroad Legislation 394 

5. Government Interference on Behalf of the Working 

Class ; Factory Laws, State Insurance, and Pen- 
sions 403 

6. Municipal Control ... * 406 

Index 411 



PART I 

THE NATURE OF THE STATE 



CHAPTER I 

POLITICAL SCIENCE, THE THEORY OF THE STATE 

1. Definition and Scope of Political Science. — 2. Relation to Other 
Sciences. — 3. Meaning of the State ; its Essential Attributes. — 
4. The Distinction between State, Society, Government, and Nation. 
— 5. The State and a Common Faith. — 6. The Ideal State. 

1. Definition and Scope of Political Science. 
A treatise on political science must naturally begin 
with some discussion as to the scope and province o£ 
the science itself, and its relation with the other branches 
of human knowledge of a kindred character. This is es- 
pecially necessary for two reasons. In the first place the 
term political science has been used with a good deal of 
latitude, not to say ambiguity, both in colloquial lan- 
guage and in scientific discussion. In the second place 
the relationship between this and various other depart- 
ments of knowledge, such as jurisprudence, history, and 
economics is an extremely intimate one. It is neces- 
sary, therefore, to endeavor as accurately as may be to 
define the proper field of political science, and to in- 
dicate its connection with other branches of learning. 

An elaborate definition may better be reserved for 
later consideration. For the present a simple and con- 
venient starting-point may be found in the statement, 
inadequate though it is, that political science deals 
with government. The word government, used in its 
widest sense, rests on the fundamental idea of control 
and obedience ; it implies authority, and a submission 



4 THE NATURE OF THE STATE 

to that authority. It thus calls before our minds a 
phenomenon which may be considered almost coexten- 
sive with human society as it at present exists, and 
which reaches back into the past almost as far as the 
history of human society itself. True it is that as we 
follow its retreat into the remote periods of history, it 
recedes with a diminishing outline that tends towards 
an unseen vanishing-point. But in this it only shares 
in a characteristic common to all the products of social 
evolution. 

Now the phenomenon of government, as we view it in 
the past and in the present, shows anything but a uni- 
form appearance. It differs constantly in its form, it 
differs in its scope and purpose, and differs most no- 
tably in the varying degrees of its complexity. These 
divergences in the concrete aspect of government are 
seen at once by comparing the rude organization by 
which a primitive pastoral tribe is held in loose cohesion, 
the city state of the Greeks, the feudal system of the 
middle ages, and the intricate mechanism of the modern 
national state. It is out of these variations offered by 
the different types of human organization in which the 
common element of government is contained that polit- 
ical science arises. In all branches of investigation it 
is the diversities and not the similarities of observed 
phenomena that afford the primary motive for specula- 
tion. In the physical world the diversities of form, 
function, and structure among plants and animals give 
occasion to the investigations of the botanist and the 
naturalist. If all plants and animals had been of a uni- 
form fashion and function their similarity would have 
been accepted as a matter of course. It is the fact that 



THE THEORY OF THE STATE 5 

this similarity does not exist that gives the initial stim- 
ulus to man's investigations. Similarly in the domain 
of human institutions the heterogeneous and complex 
appearance of the phenomena in question affords the 
basis of political science. Its field lies in the exami- 
nation and analysis of the varying forms of human 
organization in which the element of social control is 
embodied. 

At this point emerges a further analogy between the 
study of our physical and social environment. In each 
case the phenomena observed are found to be in a 
constant state of change and movement. New forms 
replace the old, the whole representing a graded series 
of ascending complexity in which higher and higher 
structures correspond to functions increasingly elabo- 
rate. In the physical world, life, from being simple and 
rudimentary, becomes complex and differentiated. New 
organs are developed and higher functions performed. 
In the superorganic world the process of social evolu- 
tion is continuous. Here too are successive stages of 
progress in which the form and character of human 
institutions undergo an unceasing alteration in accord- 
ance with the changing environment of social growth. 
The study of governmental forms must therefore in 
an eminent degree be a comparative and historical 
study. It must not content itself with a mere analysis 
of political institutions as existing at any given 
point of time ; it must take account of the process of 
change and evolution and the alteration of social and 
intellectual environment. Tliis is what is meant by the 
statement that the investigations of political science 
must be of a dynamic and not a static character. They 



6 THE NATURE OF THE STATE 

must be directed towards the proper interpretation of 
movements and tendencies in addition to the analysis 
of the status and structure of existing institutions. 
The organized aspect of the community, the state, 
must be treated not only as an actuality, but also as a 
product of the past, and as the basis of the life of the 
future. 

2. Relation to Other Sciences. Herein appears 
the connection between history and political science, a 
connection somewhat difficult to state in precise terms 
without making one of the two assume a subordinate 
character. There is indeed a natural tendency on the 
part of the political scientist to view history some- 
what in the light of mere raw material, and an equally 
natural tendency on the part of the historian to view 
political science somewhat in the light of an emana^ 
tion, one might almost say an excrescence, of history. 
It may with fairness be said that the two studies are 
mutually contributory and complementary. Political 
science would certainly be impossible without history ; 
history would lose its main significance without at least 
an unconscious political science. The facts of history 
— not all of them, but such as are significant for the 
study of institutions — constitute a part of the ground- 
work of political science ; not, it is to be noted, the 
whole groundwork, for political science must also 
build upon ethical and psychological foundations. Thus 
one might be tempted to employ the terminology of 
the logician and say that some of history is part of 
political science, the circles of their contents over-lap- 
ping an area enclosed by each. Hence it is that in the 
subdivisions of political science offered by some writers 



THE THEORY OF THE STATE 7 

" historical political science," or the history of political 
institutions, is one branch of the main subject.^ The 
connection between these allied branches of knowledge 
has been well indicated by Professor Seeley, who tells 
us that political science is the fruit of history, and 
history is the root of political science.^ A recent 
American writer ^ has illustrated the relationship in a 
still more striking manner by saying that history offers 
the third dimension of political science. 

But while commenting on the intimate interdepen- 
dence of these two branches of learning, their essential 
difference must not be forgotten. Political science has 
no concern with history in its purely narrative aspect; 
it has no interest in the mere cumulation of instances ; 
nor has it any interest in the military, commercial, or 
economic aspects of history as such ; only in so far as 
these bear upon the evolution of organized social con- 
trol, only so far as they elucidate the nature of the 
state, are they of import for the student of political 
science. The latter must revert to history for much of 
the material of his study, but always in an eclectic or 
selective fashion, coordinating his facts with a view to 
their special significance. Thus, for example, the history 
of the Puritan colonies of North America is of primary 
interest to the student of political science as illustrat- 
ing the growth of democratic self-government, the pro- 
gressive application of the federal principle of political 

1 Compare W. W. Willoughby, The Nature of the State, chap. i. 

2 J. R. Seeley, Introduction to Political Science. Compare also the 
following : " The science of politics is the one science that is deposited 
by the stream of history, like the grains of gold in the sand of a river." 
Lord Acton, The Study of History. 

3 W. W. Willoughby, op. cit. 



8 THE NATURE OF THE STATE 

consolidation, the relations of church and state, and 
the evolution of written constitutions. The economic 
life of the colonies is of only secondary and indirect im- 
portance. The religious controversies of the period as 
such, the romantic aspects of the history of the time, — 
the adventurous intercourse of settlers and savages, 
the changes of manners, speech, and costume occasioned 
by the new environment, have still less bearing on the 
problems of political science. Similarly the domain of 
the historian has its distinct limitations. Dr. Georg 
Jellinek accurately circumscribes the province of his- 
tory as follows; "History presents to us not only facts 
but the causal connection between the facts. It dif- 
fers, however, from the theoretical sciences in that it al- 
ways examines concrete cases of cause and effect, never 
abstract types and laws. If the historian undertakes 
this he passes the bounds of his own province and 
becomes a philosopher of history or a sociologist. It is 
true that no historian will be willing entirely to forego 
this higher aspect of history, but there is no science 
which offers to its students a complete self-sufficiency." ^ 
Political science stands also in close relation to po- 
litical economy. The purpose of the latter is to investi- 
gate " man's activity in pursuit of wealth." ^ It deals 
with the production and distribution of wealth under 
the influence of forces both material and psychologi- 
cal. Inasmuch as the production and distribution of 

^ Recht des Modernen Staates, vol. i, chap. i. 

2 " Political Economy, or Economics, is a study of mankind in the 
ordinary business of life ; it examines that part of individual and social 
action which is most closely connected with the attainment and with 
the use of the material requisites of well being." Marshall, Principles 
of Economics, vol. i, bk. i, ch. i. 



THE THEORY OF THE STATE 9 

material wealth is very largely conditioned by the ex- 
isting form of government and the institutional basis 
of economic life, the study of political economy is 
brought into an intimate relation with that of political 
science. The system of the English school of classical 
economists, for instance, is presumed to flow from the 
original postulates of private individual property, of 
unimpeded contract under a social sanction, and a 
mobility of the strata of society unhindered by non-eco- 
nomic forces. Conversely it is also true that political 
institutions are greatly affected by economic circum- 
stances. The particular form of government existing 
at any period and place, and the direction and extent 
of its activity, are largely dependent on the economic 
life of the community in question. Thus one would 
naturally expect the political institutions of a migratory 
pastoral tribe to differ from those of a community 
deriving its support from a fixed form of agriculture, 
while each of them would differ in the form and char- 
acter of its government from a manufacturing popu- 
lation centred in great cities. The state, in a word, is 
conditioned by its economic environment.^ Nor is it 
only in their fundamental bases that the sciences of 
economics and politics stand in close relation, for many 
specific subjects of inquiry belong in a measure to each 
of them. Such questions as the social control of mono- 
poly, the governmental management of railroads, and 
the municipal ownership of public utilities present both 
an economic and a political aspect. To the economist 
the problem is one of economic efficiency and equitable 

^ The line of tliouf^ht here sng-g'ested forms the basis of what is 
called the materialistic theory of history. See below, chap. iii. 



10 THE XATURE OF THE STATE 

distribution ; to the student of political science it is a 
question of administrative organization.^ 

The relation of political science to various other 
branches may be discussed more briefly. Constitu- 
tional law, the analysis of the organization of a par- 
ticular state at a particular time, would seem to be 
best classed as a subdivision of political science, or 
at any rate to cover a large field in common with it. 
0]3inion might also differ as to whether international 
law,- dealing with the relation of states with one an- 
other, should more properly be classed as an included 
or onjy a kindred subject. It may at any rate be said 
that in measure as international relations develop into 
the fijsity of a true international law, — a code enforced 
by a recognized authority. — so does international law 
become merged in the domain of political science. Last 
of all may be mentioned the relative position of politi- 
cal science and sociology. Here the former must be 
considered in the light of an included portion of the 
more general field. Sociology deals not only with 
organized communities, but also with communities in 
which the element of social control is as yet feebly dif- 
ferentiated. It deals not only with the legal and coercive 
relationship of man with his fellows, but also with the 

^ The ambignous relation in which the terras " political science "' and 
" political economy " stand to one another is rendered still more con- 
fusing by the divergent usages of leading American universities. At 
Harvard '" Economics " is a subdivision of the department of " History 
and Political Science." At Yale both •' Economics '' and "Politics" 
appear under the departmental title of " Social Sciences." At Chicago 
'* Political Economy " and " Political Science *' constitute separate de- 
partments. 

- Jellinek considers international law a branch of jurisprudence 
{Rechtswissenscha/t) , which is itself a subdivision of political science. 



THE THEORY OF THE STATE 11 

evolution and status of customs, manners, religion, and 
economic life. Most important is it to observe that so- 
ciology treats not only of conscious but also of uncon- 
scious social activities.^ How far such a science can be 
anything more than a group of subdivisions, or a name 
for a sort of general wisdom in regard to man's social 
environment, gained from specific studies, is perhaps 
open to question. Certainly in the hands of many of its 
exponents it seems to lose in intensity what it gains 
in width. Nevertheless, if one accepts the " science of 
society " on its own terms, it is proper to consider that 
it includes political science as one of its subdivisions. 
On this basis one may proceed to a formal definition of 
political science, which may best be accepted in the 
form offered by Paul Janet : " Political Science is that 
part of social science which treats of the foundations 
of the State, and of the principles of government." Be- 
side this may be placed the definition of J. K. Blunt- 

^ " Of all the multifarious projects for fixings the boundary -which 
marks ofP political from the more general social science, that seems 
most satisfactory which bases the distinction on the existence of a po- 
litical consciousness. Without stopping- to inquire too curiously into the 
precise connotation of this term, it may safely be laid down that as a 
rule primitive communities do not, and advanced communities do mani- 
fest the political consciousness. Hence, the opportunity to leave to so- 
ciology the entire field of primitive institutions, and to regard as truly 
political only those institutions and those theories which are closely 
associated with such manifestation." W. A. Dunning, History of Po- 
litical Theories, Ancient and Mediceval, Introduction, xvi, — But com- 
pare with this the following : " Human society truly begins when social 
consciousness and tradition are so far developed that all social relations 
exist not only objectively as physical facts of association, but subjec- 
tively also in the thought, feeling, and purpose of the associated indi- 
viduals." Giddings, Theory of Sociology {Annals Am. Acad. Fol. and 
Boc. Science, 1894). 



12 THE NATURE OF THE STATE 

schli, which draws especial attention to the dynamic 
nature of the study involved: "Political Science is 
the science which is concerned with the State, which 
endeavors to understand and comprehend the State in 
its conditions, in its essential nature, its various forms 
and manifestations, its development." ^ 

3. Meaning of the State; its Essential Attri- 
butes. Political science, then, deals with the state ; it 
is, in short, as it is often termed, ^ the " theory of the 
state." The word " state " is sufficiently familiar to have 
been used in the preceding discussion without explana- 
tion. It is now necessary to make a nearer analysis 
of the exact meaning to be attached to the term. An 
examination of the ordinary senses in which the word 

^ For convenient comparison the following definitions of allied sci- 
ences may here be noted : — 

(1) Sociology. "Sociology, defined as the science of social phe- 
nomena, includes all of these social sciences (that is, economics, politics, 
history, etc.) ; but in this general use of the terra it is not a distinct sci- 
ence, but rather the name for a body of knowledge, including several 
sciences. The more definite sphere of sociology as a science is indi- 
cated when we recognize that each of the sciences dealing with social 
phenomena involves a theory as to the nature of society." A. Fair- 
banks, Introduction to Sociology. " I am tempted to define Sociology 
as the science of associated humanity, that is, of humanity so far as it 
is united and so far as it is associated." J. H. W. Stuckenberg, In- 
troduction to the Study of Sociology. All the writers on sociology dis- 
cuss its claim to existence as a science, though formal definitions are 
few. Compare Herbert Spencer, Study of Sociology, chap, ii ; De Greef , 
Introduction d, la Sociologie, part i, chap, i ; Small and Vincent, Intro- 
duction to the Study of Society, bk. i, etc. 

(2) Jurisprudence. Jurisprudence is the " formal science of those 
relations of mankind which are generally recognized as having legal 
consequences. ... It may ... be defined provisionally as the formal 
science of positive law." T. E. Holland, Elements of Jurisprudence. 

2 See, for example, M'Kechnie, The State and the Individual, Introd. 



THE THEORY OF THE STATE 13 

is used shows at once a considerable latitude in its 
employment. Thus when we speak of the different 
" states " of Christendom, or refer to France, Germany, 
etc., as the leading states of Europe, the word seems 
roughly to correspond with such terms as country, in- 
ternational power, etc. AVhen on the other hand we 
talk of the relations existing between the " church and 
the state," we have no reference to international affairs; 
the idea implied is rather that of association or organi- 
zation. Again, in such uses as " The State and the Indi- 
vidual " (the title of the recent w^ork on political science 
already mentioned), or in the title of one of Herbert 
Spencer's books, " The Man versus the State," the word 
is plainly used to imply a contrast between the individ- 
ual citizen and the collective aspect of the community- 
Finally, in such phrases as "state aid to the poor," 
'^ state control of railroads," etc., what is thought of is 
not so much the community collectively as the special 
machinery or organized agency through which the com- 
munity acts. 

Out of the different elements here embodied we may 
construct an exact conception of what is meant by the 
state in the technical language of political science. It 
embodies as the factors of which it is composed : — 
I. A territory. 
II. A population. 

III. Unity. 

IV. Orjranization. ^ 



'O' 



^ The requisites are thus stated by Bluntschli. He prefers to add 
** soverei^ty," a factor which seems, however, to result from the combi- 
nation of the last two given above, and the nature of which is consid- 
ered in a later chapter (part i, eh. iv). 



14 THE NATURE OF THE STATE 

Let us briefly examine these in turn. Without a defi- 
nite territory there can be no state. The Jews, being 
scattered abroad and dissociated from the occupation 
and control of any particular territory, do not constitute 
a state. Professor Holland in the definition given in his 
" Elements of Jurisprudence," speaks of a " numerous 
assemblage of human beings generally occupying a cer- 
tain territory." But it seems advisable to insist on the 
idea of land being necessary. Equally necessary is a 
population. It goes without saying that an uninhabited 
portion of the earth, taken in itself, cannot form a 
state. The third requisite is said to be unity. By this 
is meant that the territory and population in question 
must form no part of a wider political unit ; nor must 
the territory contain any portion or portions which while 
forming geographically a part of it, are not a part of it 
politically. The island of Haiti is a geographical unit, 
but being divided into the separate republics of Haiti 
and Santo Domingo, does not present the unity required 
to constitute a state. In the same way the separate 
" states " of the American Union are not states in the 
technical sense of the term, since each forms part of 
the single political entirety known as the United States. 
The United States as a totality constitutes a state ; 
tlie "state" of Massachusetts does not. The final re- 
quisite, that of organization, is one that must be care- 
fully noted. Even granting that we have a territory 
and population disconnected from the rest of the world, 
and thus in a sense a unit, we have not yet a state. 
Imagine, for example, that a " numerous assemblage of 
human beings," to use Professor Holland's phrase, were 
deposited upon some uninhabited island not owned or 



THE THEORY OF THE STATE 15 

controlled by any existing government. Here we should 
have land and population and unity, but the inhabitants, 
having as yet no cohesion or connection, would not 
form a state. Imagine however that these inhabitants, 
being persons, we may suppose, accustomed to live 
under a settled government, should agree to form them- 
selves into an organized body and to vest the control 
of all of them in the hands of certain among their 
number. We should then have a state. Or let us im- 
agine a very different state of affairs. Suppose that a 
certain number of the inhabitants were enabled by their 
superior physical force or cunning to reduce the others 
to a condition of submission, so that settled relations of 
control and obedience were established. In this case too 
there would be a state. For the organization needed to 
constitute a state need not be one established by mutual 
consent or one of an equitable nature. The mere exist- 
ence of settled obedience to a superior, coercive force 
is all that is required. Any form of despotism or tyr- 
anny which fulfills these conditions establishes a polit- 
ical state just as much as does a government whose 
authority rests on a general acquiescence. 

Such, then, is the nature of the state. As formal 
definitions we may cite the following. (1) " A State is a 
people organized for law within a definite territory " 
(Woodrow Wilson).^ (2) " The body or community which 
thus by permanent law, through its organs administers 
justice within certain limits of territory is called a 
State" (Theodore Woolsey).^ A more elaborate defi- 
nition, the full bearing of which will appear in our dis- 
cussion of sovereignty, is given by Professor Holland : 
1 W. Wilson, The State. 2 t. Woolsey, Political Science. 



16 THE NATURE OF THE STATE 

"A State is a numerous assemblage of human beings, 
generally occupying a certain territory, amongst whom 
the will of the majority or of an ascertainable class of 
persons is, by the strength of such a majority or class, 
made to prevail against any of their number who op- 
pose it." ^ 

4. The Distinction between State, Society, 
Government, and Nation. The meaning to be at- 
tached to the word state will be rendered more precise 
by distinguishing it from society, government, and 
nation. The term society has no reference to territorial 
occupation ; it refers to man alone and not to his en- 
vironment. But in dealing with man its significance 
is much wider than that of state. It applies to all hu- 
man communities, whether organized or unorganized. 
It suggests not only the political relations by which 
men are bound together, but the whole range of human 
relations and collective activities. The study of society 
involves the study of man's religion, of domestic insti- 
tutions, industrial activities, education, crime, etc. The 
term government, on the other hand, is narrower than 
state. It refers to the person or group of persons 
(which in a modern community will be very numerous) 
in whose hands the organization of the state places for 
the time being the function of political control. The 
word is sometimes used to indicate the persons them- 
selves, sometimes abstractly to indicate the kind and 
composition of the controlling group. The ordinary 
citizens of a community are a part of the state, but 
are not part of the government. The term has more- 
over no reference to territory. The distinction will 
1 T. E. Holland, Elements of Jurisprudence. 



THE THEORY OF THE STATE 17 

appear more evident in our subsequent discussion of 
sovereignty.^ 

In the next place it is to be observed that nation 
and state are two distinct conceptions. The term 
nation, though often loosely used, is properly to be 
thought of as having a racial or ethnographical signifi- 
cance. It indicates a body of people — the Germans, 
the French, the Hungarians, etc. — united by common 
descent and a common language. But such divisions 
by no means coincide with the political divisions of the 
civilized world into states. Austria-Hungary consti- 
tutes a single state, but its population is made up of 
members of a great many different races. The political 
division of the civilized world into states freely inter- 
sects with the division into races, although sometimes 
tlie political units — as in the case of modern France 
— are almost coincident with the ethnographic. The 
relation between political organization and nationality 
has been a changing one. In the classical world, in 
the city states of ancient Greece and Italy, kinship 
among the citizens was considered an elemental factor 
in the composition of the state. In ancient Athens 
and Sparta persons of alien race were not considered 
as members of the political community. Hence in the 
political thought of classical Greece the conception of 
the state is limited to a small area occupied by persons 
of the same race. In the Roman world, the original 

^ Professor Burgess in his Political Science and Constitutional Law 
adopts a different basis of distinction : '* state " and " g'overnment " are 
each made to refer to the organs of social control and not to the terri- 
tory or population ; the latter term designates the ordinary mechanism 
of administration, the former the supreme hody having- absolute legal 
power. See vol. i, Political Science and Constitutional Law. 



18 THE NATURE OF THE STATE 

conception of a city state with a common nationality 
was transformed by the process of absorption and con- 
quest into the larger conception of a world-wide state 
and universal sovereignty. Nationality is here lost 
from sight. The foreign nations occupying the sub- 
jugated provinces were recognized by virtue of the 
Emperor Caracalla's act of general enfranchisement 
(a. d. 212) as citizens of the universal empire. Such 
a conception, as will be seen in a later chapter, long 
survived as the basis of European polity, though 
existing only in the shadowy form of the titular 
Holy Roman Empire. In actual fact, however, it was 
displaced by other political conceptions. Feudalism 
brought with it the notion of territorial sovereignty 
and dynastic supremacy. A state became coincident 
with the domain owned, if one may use the term, by 
a particular house and its descendants, and quite irre- 
spective of the nationalities of the subject peoples. 
States were formed out of communities of varying 
nationalities by inheritance, by cession, by marriage of 
their sovereigns. Witness for example the sovereignty 
of Henry II over An jou, Aquitaine, etc. ; the claim of 
Edward III to the crown of France; and at a later 
date, the empire of Charles V, who inherited Bur- 
gundy, Spain, part of Italy, and various Austrian 
territories. To a large extent this political fusion has 
fortunately been accompanied by a fusion of languages, 
as in the amalgamation of modern France. 

It was In the nineteenth century that the claim of 
nationality as the paramount basis of state organization 
strongly asserted itself. The great political upheaval 
consequent upon the American and French revolutions 



THE THEORY OF THE STATE 19 

led to an intense national movement in most parts of 
Europe. Under its influence modern Italy has been 
converted (1815-1870) into a national state. Germany 
has assumed a definite national form in the modern 
German Empire (1871), whose boundaries, however, 
are not identical with those occupied by the German 
people. In other countries — Hungary, Ireland — the 
same movement has been seen in abortive form, while 
the modern aspirations of Pan -Slavism, Pan -Ger- 
manism, and " unredeemed " Italy foreshadow the 
part that nationality is to play in the organization 
of the states of the future. Common nationality is 
therefore, though not an actual requisite in the com- 
position of the state as it now exists, a potent factor 
in its formation. 

5. The State and a Common Faith. At vari- 
ous periods in the world's history we find the idea 
that the existence of a common religious faith among 
the members of the state is essential to its exist- 
ence. Such was the dominant element in the com- 
position of the ancient Jewish theocracy. In the 
period following the reformation in Europe heretical 
belief was considered by both Protestant and Catlio- 
lic monarchies an offense against the state and was 
punished as such. In the theocratic Puritan colonies in 
America (Massachusetts and New Haven) only the 
members of the church were at first admitted to tlie 
exercise of political rights. With the growth of the 
doctrine of religious toleration such a view of the state 
has passed away. The civil autliority and the civil 
bond among the citizens is dissociated from their reli- 
gion. In many countries, however, established churches 



20 THE NATUEE OF THE STATE 

supported by the state remain as historic survivals 
of the earlier point of view. 

6. The Ideal State. In all of the foregoing an- 
alysis we have treated of the state as it actually ex- 
ists, not the state as it might be if viewed in its perfect 
form. This is the distinction made by the German 
writers ^ between the conception and the idea of the 
state. The conception of the state at any particular 
historical period is found in the common attributes of 
the states actually existent. The idea, on the other 
hand, is the ideal of perfect form of which any actual 
state is only an approximate realization. This ideal has 
varied from age to age. To the Greeks the ideal was 
to be sought in the perfected form of the city state. In 
our own day the national state has served as the em- 
bodiment of perfect political organization. But a wider 
ideal is conceivable in the form of the world state or 
state universal. The realization of such a political or- 
ganization, as has been said, was long the haunting ideal 
of European policy* We see it reflected in the claims 
of the Roman emperor, in the less substantial claims of 
the Eastern emperor at Constantinople after the fall 
of Rome, in the resuscitation of the empire by Charles 
the Great (a. d. 800), and in the vague sovereignty 
of the Holy Roman Emperor from that date until the 
abolition of the titular dignity (1806) through the 
power of Napoleon. The same ideal hovers before us 
as offering the goal of the political organization of the 
future. The development of international relations that 
could lead to such an end will be discussed in a later 
chapter. 

i See J. K. Bluritschli, Theory of the State, bk. i, chap. i. 



THE THEORY OF THE STATE 21 

READINGS SUGGESTED 
Burgess, J. W., Political Science and Constitutional Law (1898), 

vol. i, bk. i, chap, i, ii, iii, iv. 
Bluntschli, J. K., The Theory of the State (translation of 6th 

edition, 1885), Introd., chap, i, ii, iii, and bk. i, chap. i. 
Sidgwick, H.J Elements of Politics (2d edition, 1897), chap. i. 

FURTHER AUTHORITIES 
Jellinek, G., Das Recht des Modernen Staates, vol. i (1900). 
Willoughby, W. W., The Nature of the State (1896). 
Seeley, Sir J. R,, Introduction to Political Science (1896). 
M'Kechnie, W. S., The State and the Individual (1896). 
Pollock, Sir Frederick, A First Book of Jurisprudence (1896). 
Holland, T. E., Elements of Jurisprudence (1888). 
Bosanquet, B,, The Philosophical Theory of the State (1899). 
Wilson, W., The State (revised edition, 1900). 
Woolsey, T., Political Science, vol. i (1878). 



CHAPTER II 

ORIGIN OF THE STATE; FALLACIOUS THEORIES 

1. Theory of the Social Contract. — 2, Application made of the Theory 
by Hobbes, Locke, and Rousseau. — 3. Criticism of the Theory. — 
4. The Theory of Divine Origin. — 5. The Theory of Force. 

1. Theory of the Social Contract. After a pre- 
liminary investigation of the proper province of po- 
litical science, the topic which of necessity takes the 
first place in our inquiry is that of the origin of the 
state. How has it come about that men are every- 
where found living under some form of authoritative 
control? What is the orig^in of o^overnment and law? 
Speculation as to the beginnings of government is not 
merely a matter of historical curiosity, for it is inti- 
mately associated with the more important question 
of the justification of government, — the right of the 
state to be. The present subject thus brings before 
us both a historical and an ethical enquiry, — the in- 
vestigation of the facts as to the actual beginnings 
of political forms and the discussion of the bearing 
of these facts on the question of the rightfulness or 
wrongness of the existence of government. 

To examine and reject a fallacious hypothesis is 
often a means of arriving at the truth.. In the present 
instance a presentation of some of the mistaken theories 
proposed as to the origin of the state may aid us in 
moving towards a correct one. The different opinions 
which we shall briefly review have had such great 



ORIGIN OF THE STATE 23 

influence in the formation of existing political insti- 
tutions that a proper understanding of them is neces- 
sary in order to appreciate the forces operative in the 
growth and structure of modern governments. The 
purpose of the ensuing discussion is not, therefore, the 
merely sophistical task of demolishing hypotheses of 
straw. The rejection of what is false in the specula- 
tive theories of the past will aid in establishing more 
valid conclusions on the residual basis of what is true. 
Foremost in historical importance of all the different 
views concerning the origin of the state, is the theory 
of the social contract. As old as political speculation 
itself, and preeminent in its influence, it stands written 
large upon the history of human thought. Postponing 
for the moment the treatment of the beginnings and 
growth of the theory, let us first examine in broad 
outline the general content of the doctrine of the social 
contract. It professes to offer an explanation of the 
origin and justification of government. To do this it 
starts from the fundamental assumption that the past 
history of mankind may be divided into two periods, 
the first of which is antecedent to the institution of 
government, the latter subsequent to it. During the 
first of these periods, man is found in the "state of 
nature," uncontrolled by any laws of human imposition, 
and subject only to such regulations as are supposed 
to be prescribed to him by nature itself. This code of 
regulations, or rather, since it is nowhere written down, 
the spirit by which such a code might be presumed to 
be inspired, is spoken of as the law of nature, or nat- 
ural law. This primitive stage of natural society man 
is presently compelled to desert. Whether it be that 



24 THE NATURE OF THE STATE 

this state is too idyllic to last, or whether it becomes 
in the course of time and by reason of mutual rapacity 
too inconvenient to be tolerated, is a point of dispute 
among the exponents of the theory themselves. In 
either case man is led to substitute for it a union with 
his fellowmen in which, abandoning the isolation of 
the "natural" individual, all are joined into one civil 
society or body politic. Each now stands in a vastly 
different relation to his fellow-men. Submitting him- 
self to the joint control of all, he receives in return the 
benefit of the joint interest of all in his protection. 
To safeguard the security of all members of the body 
politic (or state), a code of law is enforced by all 
against the possible rapacity of each. Thus while each 
loses the " natural liberty " that he enjoyed in the ante- 
cedent state of nature, he gains in return the security 
to which he is naturally entitled, and which is now 
guaranteed to him by the covenant of all his fellows. 
Human law is substituted for a natural law, and the 
individual in submitting to social duties finds himself 
clothed with social rights. The process, or at any rate 
the result of it, has very much the appearance of a 
contract or bargain dictated by the individual's own 
interest, an exchange of obligations in return for privi- 
leges. Whether the bargain is to be looked upon as 
one that actually happened at a given time and place 
for each politically constituted society, or whether it 
merely expresses the result or outcome of a more grad- 
ual social process, is a matter that has been persistently 
left in a half-light. We cannot therefore make any 
general statement as to whether those who have de- 
fended the idea of the social contract have viewed it as 



ORIGIN OF THE STATE 25 

a historical fact, or only as an interpretation of the 
nature of the social bond. 

Such is in general the doctrine of the social con- 
tract. A glance at the growth and history of the doc- 
trine itself may serve to bring out more saliently the 
nature of the argument involved. The origin of the 
theory is to be found in the philosophy of the Greeks. 
It is associated more particularly with the speculative 
thought of the period during which the Greek city 
state — the organized form under which Athens and 
Sparta reached their greatest development — was fall- 
ino^ into decadence. In the writino^s of Plato and Aris- 
totle we find but scant sanction for it. The political 
thought of both of them was inspired by the ideal of 
the city state, whose importance was to them greater 
than, and antecedent to, that of the individual citizen. 
The latter, indeed, only existed in and through the 
state. The social bond wdth his fellows w^as an essen- 
tial part of man's nature. " Man," runs tlie well- 
known Aristotelian dogma, " is a political animal." 
Society, therefore, being the priuiary consideration, 
and the individual existence being possible only by 
means of it, the conception of an individual dealing 
in obligations and privileges, as a subject of contract 
with society at large, was altogether foreign to the Pla- 
tonic and Aristotelian system. 

With the Greeks of the fourth and succeeding cen- 
turies, however, tlie political environment liad alto- 
gether changed. The subversion of tlie city state by 
the Macedonian and Roman conquests led the Greek 
philosophers to turn aside from political speculation, 
and to look ujjon the political aspect of the individual 



26 THE XATURE OF THE STATE 

as merely one of the accidents of liis being. In the 
writings of the Epicurean school we find the idea that 
laws and duties imposed on the individual by any gov- 
ernment, whether foreign or autonomous, are things 
which he accepts for his own well-being, entering thus 
into a kind of compact or understanding with the pow- 
ers that be. On this foundation grew up the theory of 
the social contract. The system of the Roman law, one 
of whose greatest contributions to institutional devel- 
opment has been to bring into a clear light the con- 
ception of obligation by contract, supplied a further 
material with which to construct the completed theory.^ 
Christianity, indeed, inculcating in its early teachings 
the doctrine that all civil society had been the outcome 
of human sin, and that it was the duty of the Christian 
to submit to the rule of temporal powers as a part of 
his abnegation of self, seemed at first to run counter 
to the supposedly equitable bargain of a social con- 
tract. Nevertheless in the polemics of the middle ages, 
during which the rival claims of the empire and the 
papacy supplied the basis of political controversy, a 
sort of meeting-point appears between the doctrine of 
a social contract and the early Christian conception of 
the nature of civil society. The advocates of the papal 
claim held that kings and princes in general, and hence 
the emperor among them, held their offices (under 
God's sanction) by reason of a covenant with the peo- 
ple, even as the elders of Israel covenanted with King 
David.^ This view, connected presently with the earlier 
Greek philosophy, gave rise to a special form of con- 

^ See in this connection David G. Ritchie, Darwin and Hegel, with 
Other Philosophical Studies. (181)3.) - 2 Samuel, v. 3. 



ORIGIN OF THE STATE 27 

tract theory in tlie idea of a compact made by all the 
people with one person, a contract between a king and 
his subjects. To this special form of the general doc- 
trine the name of governmental compact ^ has often 
been given. 

2. Application made of the Theory by Hobbes, 
Locke, and Rousseau. It was in the seventeenth 
and eighteenth centuries, in consequence of the reli- 
gious and civil upheavals by which the political in- 
stitutions of Europe were moulded anew, that the 
theory of contract obtained its greatest prominence. 
Hobbes and Locke in England and Jean Jacques 
Rousseau in France became its chief exponents. A 
review of the contract theory as laid down by each 
will serve to show it in its completed form. Thomas 
Hobbes, sometime tutor to Charles II, and prominent 
among the writers of the seventeenth century for his 
works on moral and political j^hilosophy, offers in his 
" Leviathan " (1651) a striking exposition of the con- 
tract theory. The foundation of his theory lies in his 
estimate of man's essential nature. Man, according to 
Plobbes, is an altogether selfish and self-seeking ani- 
mal. The sole motive for his actions proves on analysis 
to be the wish to satisfy his own appetites and desires ; 
even such a quality as benevolence is seen on examina- 
tion to result from man's " love of i)ower and delight 
in the exercise of it." Compassion is only "grief at 
the calamities of others from the imagination that the 
like calamity may befall ourselves." Man is there- 
fore by nature anything but a social animal ; indeed 
he finds " nothing but grief in the company of his 

1 See W. W. Willoughby, The Nature of the State (189(3), ch. iv. 



28 THE NATURE OF THE STATE 

fellows," all being equally rapacious and self-seeking. 
The state of nature is consequently a state of war, the 
war of each against all; it is a state of "continual 
fear and danger of violent death ; and the life of man 
solitary, poor, nasty, brutish, and short." From this 
condition man is driven by evident necessity to join 
himself with his fellows under some common authority, 
universal submission to any form of control, however 
despotic, being preferable to the mutual warfare of the 
state of nature. In the contract which men thus make 
among themselves all agree to submit to a single au- 
thority, which Hobbes interprets to be that of a king 
or absolute sovereign. But the latter, from the nature 
of the case, though benefited by the contract, is not a 
party to it. Such a contract thus differs from the gov- 
ernmental compact referred to above in that the king, 
being no party to it, cannot break it. It becomes irre- 
vocably binding on all the community as a perpetual 
social bond. In this way the theory is used by Hobbes 
as a defense of absolute monarchy, the philosopher 
appearing as the theoretical apologist of the Stuart 
despotism. 

Very different is the presentation of the contract by 
Hobbes's illustrious contemporary John Locke. With 
the latter the state of nature is not one of universal 
war; it is, however, inconvenient and unsatisfactory. 
There is in the first place the standing " want of an 
established, settled, known law, the 'law of nature' 
being obscured since men are biased by their interest 
as well as ignorant for want of study of it." Nor is 
there " a known and indifferent judge," nor, finally, an 
active power to punish those who contravene the law 



ORIGIN OF THE STATE 29 

of nature. For these reasons, men are led to abandon 
th'e "freedom" of the state of nature, and submit to 
the restraint of civil society. In the contract which 
they make, however, the monarch to whom they agree 
to submit, is himself a party. The contract as presented 
by Locke does not precisely correspond to the govern- 
mental compact, since it not only establishes the author- 
ity of the monarch, but also joins the members of the 
community by mutual covenant into a body politic.^ 
It differs on the other hand from the contract of Hobbes 
in that the monarch is a party to it, and holds his 
office only by virtue of his compliance with the terms 
of the contract. Should the king break these, the 
contract is dissolved. In this form the theory is made 
the basis of a system of limited monarchy, and Locke 
stands as the apologist of the English revolution of 
1688. The char^^e of havino^ endeavored to " subvert 
the original contract between king and people," which 
was the indictment of the Convention Parliament 
against King James II, shows the basis of Locke's later 
defense of the revolution which was embodied in his 
" Treatises on Government " (1690). 

Strongly contrasted with each of these is the stand- 
point of the great French writer of the eighteenth cen- 
tury, Jean Jacques Rousseau. Rousseau's book, the 
" Contrat Social" (1762), may be taken as the exposi- 
tion of the theory dominant in the eighteenth century. 
With Rousseau the state of nature appears as an era 

^ The late Professor Ritchie claimed that the customary contrast 
between Locke and Rousseau is erroneous, the essence of Locke's so- 
cial contract being the incorporation of society and not the appointment 
of a king. See essay " The Social Contract Theory," Political Science 
Quarterly, 1891. 



so THE NATURE OF THE STATE 

of almost idyllic felicity.^ The simple savage endowed 
with a health and vigor as yet unimpaired by the ener- 
vating influences of civilization suffices easily for his 
own restricted felicity. To this hypothetical state of 
nature Rousseau appeals for the solution of the prob- 
lems of civilized life in regard to education, morals, 
etc. As the numbers of the race increase, this primitive 
condition becomes no longer advantageous. The ob- 
stacles which injure man's preservation in the state of 
nature grow more powerful than the forces which each 
individual can employ to maintain himself in this con- 
dition. Man is thus driven to relinquish his " natural 
liberty," that rather illusory "umlimited right to every- 
thing he is able to obtain," and by a union with his 
fellows to substitute civil for natural liberty. To do 
this he is driven to find a " form of association which 
may defend and protect with all the force of the com- 
munity the person and property of each associate and 
by which each, being united to all, yet only obeys him- 
self and remains as free as before." This is the social 
contract, a covenant of each with all. The king or 
monarch (or governing body of any kind) is not a 
party to the bargain, nor is the tenure of office of the 
ruler or rulers one of the terms of the contract. The 
king is merely a commissioned officer who holds his 
position at the dictates of that general will (yolonte 
gmerale) which emerges as the sovereign power in 
consequence of the contract. Any king is of course 
deposable if the general will demands it. With Rous- 
seau the doctrine of the social contract, which in the 

1 Rousseau's views on the state of nature are found in detail in his 
Discours sur VInegalitL 



ORIGIX OF THE STATE 31 

hands of Hobbes was made a weapon of defense for 
absolutism, and with Locke a shield for constitutional 
limited monarchy, becomes the basis of popular sover- 
eignty. 

3. Criticism of the Theory. From the exposition 
of the theory, let us turn to the question of its criti- 
cism. Attacked even in the eighteenth century by 
David Hume,^ it has undergone a series of assaults at 
the hands of the publicists of the nineteenth century, as 
the result of which it may be now looked upon as ex- 
ploded. Jeremy Bentham says of it, " I bid adieu to the 
original contract and I left it to those to amuse them- 
selves with this rattle who could think they needed it." 
J. K. Bluntschli, one of the most distinguished German 
writers on political science in the nineteenth century, 
pronounces the theory not only unhistorical and illogi- 
cal, but even " in the highest degree dangerous, since 
it makes the State and its institutions the product of 
individual caprice." ^ 

Of the arguments directed against the social contract, 
the most evident and the most unanswerable is that the 
theory has no foundation in history. There is no re- 
corded instance of a group of savages, previously with- 
out any political organization or political ideas, deliber- 
ately meeting together to supply the defect. Nor is it 
rational to suppose that any such deliberate first crea- 
tion of the state could have happened ; for this presup- 
poses in the minds of its founders the conception of 
social organization before any such phenomenon had 
existed. They must have known what a government 

1 Hume, Philosophical Works (Edinburgh, 1854), vol. iii, essay xii. 
* Bluntschli, Theory of the State, bk. iv, ehap. ix. 



32 THE NATURE OF THE STATE 

was before tliey could make oue. As against this it 
is urged that history does furnish us instances of what 
may be termed the formation of a social contract, not 
indeed among men hitherto ignorant of government, 
but among groups of people separated from the state 
under which they had lived, and desirous of forming a 
new organization by deliberate action. Most famous of 
these instances is the case of the Puritan emigrants of 
the Mayflower. The familiar document drawn up and 
signed by them while still on board ship runs, " We . . . 
do, by these presents, solemnly and mutually in the 
presence of God and one another, covenant and com- 
bine ourselves together into a civil body politic, for our 
better ordering and preservation." " When Carlyle 
objects," says Professor Ritchie, " that Jean Jacques 
could not fix the date of the social contract, it would at 
least be a plausible retort to say that the date was the 
11th of November, 1620."^ Further examples are found 
during the same era of American history in the Provi- 
dence agreement (1636) and the plantation covenant 
of New Haven (1638). It has even been urged that 
the written constitutions of the United States and its 
component commonwealths are historical instances of 
social contracts. But in ail of these cases we have at 
best not the institution of a state among a people 
hitherto devoid of political organization, but the estab- 
lishment of a particular government by persons already 
accustomed to the rights and duties of civil society. If 
the social-contract theory merely meant that in some 
cases particular governments are established by joint 
and general action, it would be hard to contradict it. 

1 Ritchie, Political Science Quarterly, 1891. 



ORIGIN OF THE STATE 33 

It is, however, possible to abandon the doctrine of the 
social contract as representing a historical occurrence, 
and yet to adhere to it as expressing the proper inter- 
pretation of the relations between the individual and 
the state. Viewed in this light it is no longer a histori- 
cal but an analytical conception. It proposes as the 
justification of the state a voluntary exchange of services 
between the individual and the political community. 
The individual renders obedience and receives protec- 
tion. It is in this form that we find the contract doctrine 
maintained by many political philosophers of the early 
nineteenth century. Such for instance is the standpoint 
of Kant.^ The contract, he says, is " not to be assumed 
as a historical fact, for as such it is not possible, but it 
is a rational idea which has its practical reality in that 
the legislator may so order his laws as if they were the 
outcome of a social contract. The latter becomes in 
consequence 'the criterion of the equity of every public 
law.' " 2 Yet even as an ideal of social relations, the 
contract doctrine has been assailed, one may say almost 
overwhelmed, with hostile criticism. The individual, 
it is argued, is joined to the state not by a voluntary 
conjunction but by an indissolvable bond. The relation 

^ See Kant's treatise On the Common Saying, etc. A g'ood exposition 
of Kant's views in regard to the nature of the state is given by Pro- 
fessor Paulsen, Immanuel Kant, New York, 1902, pp. 348-301. 

2 It is in this modified form that the doctrine of the social contract 
becomes the basis of the benefit theory of taxation ; the individual is 
hereby called upon to contribute to the public needs not in accordance 
with his " faculty " or ability to contribute, but in accordance with the 
amount of benefit or protection that he receives. In practice either 
theory would tax the rich more heavily than the poor ; l)ut the fun- 
damental conceptions of the relation of the individual and the state 
implied in the two theories are essentially opposed. 



34 THE NATURE OF THE STATE 

is a compulsory one. Each of us is born into the state ; 
we are part of the state and the state is part of us. 
The state is not a mutual assurance society, member- 
ship in which is a matter that the citizen may accept 
or reject. Nor is the true measure of our social duties 
to be found in the extent of benefit that we receive 
from society. Our common experience of the nature 
of the state indicates much that conflicts with the nar- 
row view suggested by the quid pro quo of a contract 
relation. Patriotism — the sacrifice of the individual's 
interests to the claims of the community — we account 
one of the highest of virtues. We look to the state as 
the especial guardian of the poor and the helpless. We 
call upon it to act not for the present generation alone, 
but for the welfare of those which are to come. The 
state, in fine, stands in its ideal aspect for the collec- 
tive moral effort of the whole community. The line of 
thought here suggested finds its extreme expression in 
what is called the " organic theory of the state," a doc- 
trine that will be examined in a later chapter. 

4. The Theory of Divine Origin. The import- 
k/ice of the social-contract theory has entitled it to a 
somewhat elaborate discussion. Of the other fallacious 
doctrines in question, the two principal ones, the the- 
ory of the divine origin of the state and the theory of 
force, may be more briefly mentioned. The theory of the 
divine origin, known in familiar form as "the divine 
right of kings," may now be regarded as entirelj 
extinct in political theory. It belongs especially to 
the period of the sixteenth and seventeenth centuries. 
Originating after the great mediaeval controversy of 
the Papacy and Empire had subsided, it represents the 



ORIGIN OF THE STATE 35 

resistance offered by the constituted monarchical gov- 
ernments to the growing ideas of popular sovereignty. 
Its essential meaning is that each and every existing 
state represents an institution of deliberate divine 
creation. Under this theory the government, or one 
may say the monarch, since the doctrine was directed 
towards the defense of the monarchical system, repre- 
sents a direct divine agency against whom no supposed 
principle of individual rights can be valid. In a cer- 
tain sense it is of course very generally held that all 
human institutions represent the controlling power of 
the Deity. But the theory of divine right goes much 
farther than this. It assumes the Deity to have vested 
political power in a special way, and by special inter- 
vention, and to have seen fit to deny political suprem- 
acy to the mass of the community. Such works as 
the '' Patriarca " of Sir Robert Filmer, a parasitic 
apologist of the later Stuarts, reflect the theory in its 
extreme form, the paternal power vested at the crea- 
tion in Adam being here supposed to pass by descent 
to the kings and princes of Europe. The theory as 
such needs no longer a serious refutation. It has, how- 
ever, been pointed out by several critics of this doctrine 
that It has left deep traces in the underlying political 
thought of European nations. The idea of kingship as 
having a peculiar divine sanction — the " divinity that 
doth hedge a king " — Is by no means an extinct ele- 
ment in the thought of many people both in Great 
Britain and continental Europe.^ 

5. The Theory of Force. Finally, we may men- 

^ See in tliis connection Walter Bag-ehot, The English Cotistitiition, 
ch. iii. 



36 THE NATURE OF THE STATE 

tion among the erroneous doctrines in explanation of 
the origin and meaning of the state the theory of 
force. Here, again, the same theory appears both as a 
historical interpretation of the rise of the state and as a 
rational justification of its being. Historically it means 
that government is the outcome of human aggression, 
that the beginnings of the state are to be sought in the 
capture and enslavement of man by man, in the con- 
quest and subjugation of the feebler tribes, and, gener- 
ally speaking, in the self-seeking domination acquired 
by superior physical force. The progressive growth 
from tribe to kingdom, and from kingdom to empire, is 
but a continuation of the same process. Such a point 
of view is frequent with the fathers of the church and 
the theologians of the middle ages, by whom the ori- 
gins of earthly sovereignty are decried in order that its 
subordination to the supremacy of the spiritual power 
may be the more evident. Gregory VII wrote (a. D. 
1080), " Which of us is ignorant that kings and lords 
have had their origin in those who, ignorant of God, 
by arrogance, rapine, perfidy, slaughter, by every crime 
with the devil agitating as the prince of the world, 
have contrived to rule over their fellow men with blind 
cupidity and intolerable presumption." ^ 

In modern times we see much the same view ad- 
vanced for a very different purpose in the earlier 
political writings of Herbert Spencer.^ " Government," 
he says, " is the offspring of evil, bearing about it the 
marks of its parentage." With the churchmen the tem- 

^ Otto Gierke, Political Theories of the Middle Age, translated by 
Professor Maitland (1900). 
2 See Social Statics (1869). 



ORIGIN OF THE STATE 37 

poral power was defamed for the benefit of the spiritual 
authorities ; with Spencer and the still more extreme 
writers of the " anarchistic " school, the maintenance 
of the rights of the individual man is the object pur- 
sued. We find the theory of force elaborated in detail 
by Marx, Engels, and the writers of the German social- 
istic group. Here the doctrine assumes a slightly dif- 
ferent form. The growth of the state is to be attrib- 
uted to the process of aggressive exploitation, by means 
of which a part of the community has succeeded in de- 
frauding their fellows of the just reward of their labor. 
Existing governments represent merely the coerciv^e 
organization which serves to hold the workers in bond- 
age.^ The socialist writers have no fault to find with 
the abstract existence of a state or coercive authority. 
Their objection is directed against the particular form 
of the present state, which they ascribe to its iniqui- 
tous historical origin. As against the theory of force in 
general it can with propriety be advanced that it errs 
in magnifying what has been only one factor in the evo- 
lution of society, into the sole controlling force. That 
government has in part been founded on aggression no 
one will readily deny. But as we shall presently see, 
its institution has owed much to forces of an entirely 
different character. Even a " population of devils,'* 
Kant has said, " would find it to their advantage to 
establish a coercive state by general consent." 

The force theory has also played some part in politi- 
cal thought, not as a historical account of the rise of 
the state, but as a means of its justification. Stated in 

The historical process of dispossession is outlined in the Manifesto 
of the Communist Party, written by Marx and Engels in 18-48. 



38 THE NATURE OF THE STATE 

its crudest form, sucli a doctrine is equivalent to the 
proposition that might is right. "The individual," 
writes Jellinek, in elucidation of this point of view, 
"must submit himself to it since he perceives it to 
be an unavoidable force (^Naturgewalt). " Bluntschli 
even maintains that the doctrine has " a residuum of 
truth, since it makes prominent one element which is 
indispensable to the state, namely force, and has a cer- 
tain justification as against the opposed theory (that 
of contract) which bases the state upon the arbitrary 
will of individuals, and leads logically to political im- 
potence." ^ But in plain matter of fact, and apart from 
the refinements of abstraction, the proposition seems 
hopelessly illogical. As was long ago pointed out by 
Rousseau, the right that is conferred by might can 
reasonably be said to last only as long as the might 
which confers it. Submission to the state would there- 
fore only be warranted as long as one was unable to 
do anything else than submit. The amount of justifica- 
tion involved in this is less than nothing. 

The theory of force, as a defense of the governmental 
authority, assumes quite a different aspect at the hands 
of Ludwig von Haller. Writing at a time when the 
great wars of the Revolutionary and Napoleonic era had 
overwhelmed the sanguine outlook of the eighteenth 
century enlightenment in the disillusion of a devastated 
continent, he represents a natural revulsion from the 
deification of popular sovereignty towards the princi- 
ples of monarchical authority. With Haller govern- 
ment is based upon " the natural law that the stronger 
rules." But the principle invoh^ed is one of benevo- 

1 Theory of the State, bk. iv, chap. viii. 



ORIGIN OF THE STATE 39 

lence, not of repression. The fundamental bond of 
human relationship and social cohesion is the depend- 
ence of the weak upon the strong. Obedience is given 
on the one hand, protection on the other. We see this 
in the relation of parent and child, husband and wife, 
master and servant. This is the true relation of the 
prince and the subject. The position is not one created 
by a voluntary act ; it is not a contract ; it is a part of 
the fundamental order of the universe. "We might as 
well say," Haller contends, "that there is a contract 
between a man and the sun, that he will allow himself 
to be warmed by it." This universal law of the sub- 
mission of the weak to the strong is thus made the 
basis of a theory of absolute monarchy and unlimited 
submission. Though clothed in a benevolent form it 
amounts to the assertion that sovereign power is the 
disposable property of the prince. As such it needs no 
refutation.^ 

READINGS SUGGESTED 
Willoughby, W. W., Xcatiire of the State (189G), chaps, iii, iv, 

V, VI. 

Burgess, J. W., Political Science and Constitutional Law (1898), 

vol. i, bk. ii, chap. ii. 
Rousseau, J. J., Social Contract (17G2), bk. i, chaps, i-ix. 
Pollock, Sir Frederick, History of the Science of Politics 

(1900), chap. iii. 

FURTHER AUTHORITIES 
Hooker, R., Ecclesiastical Polity (1594). 
Locke, John, Treatises on Civil Government (1G90). 

^ Von HaUer's Restoration of Political Science appeared in six vol- 
nmes, 181G-1834. The substance of his "patrimonial theory " is dis- 
cussed by Paul Janet, Ilistuire de la Science Politique, vol. ii, and by 
C. Merriam, Theory of Sovereignty, chap. iv. 



40 THE NATURE OF THE STATE 

Hobbes, T., Leviathan (1651). 

Eitchie, D. G., Darwin and Hegel (1893). 

Hume, D., Essays (1741-1742). 

Graham, W., English Political Philosophy (1899) (Hobbes, Locke, 

Burke, pp. 1-174). 
Lowell, A. L., Essays on Government (No. IV.), 1889. 



CHAPTER III 

THE TRUE ORIGIN OF THE STATE 

1. The Historical or Evolutionary View of the State. — 2. The Patri- 
archal and Matriarchal Theories. — 3. Course of Development : the 
Aristotelian Cycle. — 4. Military and Economic Factors. — 5. Some 
General Features of Political Evolution. 

1. The Historical or Evolutionary View of the 
State. The fallacious theories presented in the last 
chapter may be considered to prepare the way for a 
more correct estimate of the origin of the state. The 
view held by the best modern writers may be described 
as the historical or evolutionary theory of the state. 
By this is meant that the institution of the state is not 
to be referred back to any single point of time ; it is 
not the outcome of any single movement or plan. The 
state is not an invention : it is a growth, an evolution, 
the result of a gradual process running throughout 
all the known history of man, and receding into the 
remote and unknown past. " The proposition that the 
State is a product of history," says Professor Burgess, 
" means that it is a gradual and continuous devel- 
opment of luiman society out of a grossly imperfect 
beginning through crude but improving forms of mani- 
festation towards a perfect and universal organization 
of mankind." It is thus altogether erroneous to think 
of man as having in the course of liis evolution attained 
to a full physical and mental development, and then 
looking about him to consider the advisability of in- 



42 THE NATURE OF THE STATE 

venting a government. We might as well imagine man, 
mentally and physically complete, deciding that the 
time had come for the invention of language, in order 
to satisfy his growing need of communicating with his 
fellows. Just as language has been evolved from the 
uncouth gibberings of animals, so has government had 
its origins in remote and rudimentary beginnings in 
prehistoric society. Man's capacity for associated ac- 
tion and social relationships of all kinds has proceeded 
by a gradual development parallel with that of his 
physical and intellectual aptitudes. 

2. The Patriarchal and Matriarchal Theories. 
This general idea or principle of a gradual and pro- 
gressive evolution seems clear enough. Yet if we at- 
tempt to go further and map out the stages of man's 
social development, the most serious difficulties are 
encountered. The simplest and earliest method of offer- 
ing a historical account of the genesis of social amal- 
gamation was found in taking the family to represent 
the primal unit of social history. The control exercised 
by a father over his children, which presently expands 
into the control of a patriarch over his descendants, 
was supposed to represent the origin of human govern- 
ment. It indicated at the same time a justification 
of the state as proceeding from the purely " natural " 
institution of the family. First a household, then a 
patriarchal family, then a tribe of persons of kindred 
descent, and finally a nation, — so runs the social series 
erected on this basis. This attempt to refer the insti- 
tution of government to the authority of an original 
father of a family is known as the patriarchal theory, 
it has sought to defend itself by reference partly to 



THE TRUE ORIGIN OF THE STATE 43 

historical instances, partly to current, facts. We find 
it as early as in the writings of Aristotle, the first book 
of whose " Politics" contains a statement of the theory. 
" The family," says Aristotle, " arises first ; . . . when 
several families are united, and the association aims at 
something more than the supply of daily needs, then 
comes into existence the village. . . . When several 
villages are united in a single community perfect and 
large enough to be nearly or quite self-sufficing, the state 
(TTO/Vts) comes into existence." Since Aristotle's time 
the same view has been presented by a variety of 
writers as offering a valid account of the origins of 
political institutions. The case of such communities 
as the nomadic tribes of central Asia is adduced in 
proof of the correctness of the view. 

The historical researches of the nineteenth century, 
however, have rendered it impossible to accept the 
patriarchal theory as offering a universal or final solu- 
tion of the problem of the origin of government. The 
critics of this theory have conclusively shown, in the 
first place, that the patriarchal regime has not every- 
where appeared as the foundation of later institutions, 
and, in the second place, that even where it has ap- 
peared, it has not of necessity been the oldest form of 
social regulation which may be traced in prehistoric 
times. Such has been the substance of the results 
reached by J. F. McLennan and others who have 
sought to substitute a rival hypothesis under the title 
of the matriarchal theory. By this is implied an alto- 
gether different social arrangement from that suggested 
by the supposition of a primitive family. Previous to 
the patriarchal or family group men are found living 



44 THE NATURE OF THE STATE 

in "hordes" or "packs," in which the usual relations 
of husband and wife do not exist. Eelationship, in- 
stead of being traced through the father, is traced in 
such a primitive society altogether through females. 
The nature of this relationship may be understood by 
referring to the account given by Mr. Edward Jenks 
in his recent " History of Politics." ^ Mr. Jenks de- 
scribes as typical of primitive society the arrangement 
still existent among the natives of Australia and the 
Malay Archipelago. "It is the custom," he says, " to 
speak of the Australian and other savages as living 
in tribes ; ... it would really be better to call it the 
' pack,' for it more resembles a hunting than a social 
organization. All its members are entitled to share in 
the proceeds of the day's chase, and, quite naturally, 
they camp and live together . . . [but] the real social 
unit of the Australians is not the ' tribe ' but the totem 
group, , . . The totem group is primarily a body of 
persons distinguished by the sign of some natural ob- 
ject such as an animal or a tree, who may not inter- 
marry with one another. ' Snake may not marry Snake. 
Emu may not marry Emu.' This is the first rule of 
savage social organization. . . . The other side of the 
rule is equally startling. The savage may not marry 
within his totem, but he must marry into another totem 
specially fixed for him. More than this, he not only 
marries into the specified totem, but he marries the 
whole of the women of that totem in his own genera- 
tion. ... Of course it must not be supposed that this 
condition of marital community really exists in prac- 
tice. As a matter of fact each Australian contents him- 

1 E. Jenks, History of FoUtics (1900). 



THE TRUE ORIGIN OF THE STATE 45 

self with one or two women from his marriage totem." 
Under such a system, " as far as there is any recogni- 
tion of blood relationship at all it is through women 
and not through men." Several writers on the matri- 
archal theory have considered that in this primitive 
stage of society not only is descent traced through the 
mother, and property passed in the female line, but the 
social group is ruled by the women, not the men. Such 
a condition of things is actually found, for instance, 
among the Hovas of Madagascar. But as a hypothesis 
of a universal social arrangement it has been quite 
refuted. 

The exponents of the matriarchal theory — under- 
stood here in the narrower sense of a system of re- 
lationship and not of female rule — present it as the 
universal primitive condition of mankind. Out of it, 
they tell us, the patriarchal system has emerged 
through the adoption of settled pastoral and agricul- 
tural habits in place of the purely wandering or hunt- 
ing life of primitive man. That such a system of tribal 
relationship as is here described exists in some savage 
communities of to-day, and has often existed in the past, 
seems beyond a doubt. There does not, however, seem 
any adequate proof for regarding it as the universal 
and necessary beginning of society. Indeed social his- 
tory does not seem to lend itself to so simple a formula 
of successive development. No single form of the ])rim- 
itive family or group can be asserted. Here the matri- 
archal relationship, and there a patriarchal regime is 
found to have been the rule, — either of which may 
perhaps be displaced by the other. Indeed one has to 
admit the fact that there is no such things as a " be- 



46 THE NATURE OF THE STATE 

ginning " of human society. All tliat can be asserted 
is that in the course of time the monogamic family 
tended to become the dominant form, though even until 
to-day it has not altogether supplanted other forms of 
organization. This does not say, however, that paternal 
control of the family is to be looked on as the one 
necessary beginning of government and social control. 
For it must have happened in many instances that 
social authority of a rudimentary sort existed where as 
yet the monogamic family was unknown.^ 

3. Course of Development: the Aristotelian 
Cycle. The earlier stages of the social evolution seem 
therefore to lend themselves but poorly to any scheme 
of orderly and uniform progression. Much the same 
difficulty meets us in trying to reduce the successive 
stages of historical development to any general plan. 
It is clear that between the rudimentary form of social 
control exercised by the chief of a primitive tribe, and 
the complex and effective organization of a modern 
civilized government, a vast historical evolution is ap- 
parent. But to reduce the stages of this progression to 
a necessary coordinated sequence appears an impossi- 
ble task. The same goal has been reached by different 
paths ; not all political communities have passed through 
the same phases of development. What has been the 
result of an internal evolution in some has been ef- 
fected in others by imitation and adaptation of what 

1 " Of all these endless controversies in reference to relationship and 
marriag-e, what seems to me most evident is that the primitive family 
has assumed various forms, here monogamic, there polygamic, elsewhere 
polyandric, sometimes exogamic, sometimes endogamic, often more 
authoritative, sometimes less so than it has become later." G. Tarda, 
Les Transformations du Droit, chap. iii. 



THE TRUE ORIGIX OF THE STATE 47 

already existed elsewhere. Democratic goTernment has 
been attained in various modern states by quite distinct 
historical stages. 

Notwithstanding these considerations, the attempt to 
reduce political progress to the formida of a prescribed 
course of development has often been made. At the 
very outset of political specidation we have the famous 
"cycle theory" of Plato, and a theory of progressive 
change laid down by Aristotle. Plato thought that the 
natural life of a state must move through a definite 
course of political changes. Aristocracy, the rule of the 
best, passed into timocracy, — the government of hoDor 
or rule of the militarv class. This chanc^ed to olio:archv, 
then to mob rule, and finally to tyranny.- The views 
of Aristotle will be considered in some detail in a later 
chapter.- While criticising Plato's oj^inions and point- 
ing out that successive political revolutions do not 
always follow the same order of development. Aristotle 
nevertheless considers the transition from monarchy to 
oli<rarchv, from olicrarchv to tvrannv. and from tvrannv 
to democracy to have been the normal or usual nature 
of Hellenic political change.^ However applicable this 
may have been to the history of the Greek city states 
of the seventh and following centuries before the 
Christian era, it cannot be accepted as any general or 
universal key to the political evolution of later ages."* 

4. Military and Economic Factors. Equally 
attractive and no less futile is the attempt to ascribe 

* Plato, Republic, bk. viii, § 545. See also Dunning-, W. A.. Uistory 
ofPolitiral Theories (1902), chap. ii. 

^ See pjart i. chap. vii. 

■ Aristotle, Politics, iii. chap. 15. 

* See in this coDDectiun Warde Fowler, J7«e City-StcUe. 1S9S. 



48 THE NATURE OF THE STATE 

the evolution of the modern state to tlie operation of a 
single, or at any rate a dominant, motive power. Of 
this an illustration is seen in the " History of Politics," 
already mentioned. " The origin of the state, or polit- 
ical society," says Mr. Jenks, " is to be found in the 
development of the art of war. . . . There is not the 
slightest difficulty in proving that all political communi- 
ties of the modern type owe their existence to success- 
ful warfare." ^ It is of course quite true that all modern 
political communities have had to fight for their exist- 
ence. It is also true that certain aspects of their organi- 
zation — standing armies, conscription, etc. — bear 
witness to the importance of the function of external 
defense. But it is not to be supposed on this account 
that the type assumed by modern political communities 
is to be ascribed entirely to the exigencies of their 
military life. Contrast with this the standpoint of the 
Marxian socialists of Germany, who tell us that the de- 
velopment of government, along with that of all social 
institutions, is to be attributed solely to economic fac- 
tors. The state represents merely the organization by 
which the property-owning class enjoys the fruits of the 
laborer's toil.^ In each of these cases a single factor in 
the history of the modern state is unduly magnified to 
appear as the paramount force in its development. 

5. Some G-eneral Features of Political Evolu- 
tion. To trace the rise and growth of any particular 
state, and the different phases of the evolution of its 
institutions, is the task of history, not of Political Sci- 
ence. Speaking of the state in general it is impossible 

^ History of Politics, chap. xiii. 

2 Manifesto of the Communist Party, 1848. 



THE TRUE ORIGIX OF THE STATE 49 

to predicate any universal course of development or 
any necessary series of forms wbicli it must assume. 
Looking, however, at the present stage that has been 
reached in the growth of political institutions, we may 
nevertheless indicate some of those general character- 
istics which the modern state has acquired and which 
differentiate it so entirely from rudimentary or primi- 
tive governments. In the first j^lace there has been, 
speaking broadly, a progressive increase in the extent 
of territory occupied by a single state. At the dawn of 
history, mankind is found grouped in vast numbers of 
small political communities. On the map of the world 
to-day we find the greater part of the inhabited ter- 
ritory controlled by a relatively small group of vast 
states. Of the 52,300,000 square miles which make up 
the land surface of the globe the British Empire covers 
11,516,000, the Russian Empire 8,660,000, the Chinese 
Empire 4,277,000, and the United States 3,567,000. 
True, this widening area of the territorial political 
unit has not been literally continuous. The Roman Em- 
pire was vastly greater than such small modern states 
as Greece or Roumania. But the tendenc}', though at 
times interrupted or over-accelerated, is nevertheless a 
leading factor in the history of the world. In the sec- 
ond place we may note the constantly increasing fixity 
and certainty of the action of the state. The rule of a 
primitive government, especially if spread over a rela- 
tively large area, is uncertain and irregular. Offenses 
against its authority may or may not meet with retri- 
bution, and when it punishes it acts with a vengeful 
severity arising from its weakness. In many cases its 
sway is little more than nominal. But the progressive 



60 THE NATURE OF THE STATE 

development of political institutions has given to the 
state an organization which insures to it a definite and 
regular action. A third essential feature in the de- 
velopment of the state is the growth of political con- 
sciousness. The earlier stages of social union are largely 
intuitive and unconscious ; nor does there ever come a 
single point of time at which collective action suddenly 
becomes deliberate. We have seen that the assumption 
of such a step in political development was one of the 
mirrors of the social-contract theory. But in comparing 
rudimentary government with modern civilized govern- 
ment we can observe the essential difference that ex- 
ists in this respect. 

Of the other broad features of the development of 
social structure, the separation that has been effected 
between the religious and the political aspects of society 
may be especially noted. The early forms of govern- 
ment were theocratic. The functions of priest and king 
were intermingled or closely allied. The divine law was 
presumed to constitute the sanction behind human enact- 
ments. Such is the system on which rested the theocracy 
of the Jews. In the modern state, however generally 
it may be admitted among the citizens that legislation 
ought to be based on the ethical principles of Chris- 
tianity, the interpreters of the divine law, in the form 
of the priesthood, are not placed in a position of civil 
authority. The guidance of the spiritual and the po- 
litical life of the communit}^ is in different hands. The 
nature of the earlier form of the state is seen in the 
survival of established or partially established churches 
in Great Britain and some other European countries. 
The formerly prevalent practice of invoking the author- 



THE TEUE ORIGIN OF THE STATE 51 

ity o£ the state to suppress heresy and unbelief rested 
on the same conception of organization. The progres- 
sive separation of church and state has been one of the 
evident results of political evolution. 

The growth of democratic government, the partici- 
pation of the great mass of the people in political con- 
trol, is the most important feature in the development 
of the state. Democratic government does not, of course, 
exist in all the great civilized states, but in the chief 
of them — either in the shape of a republic or under 
the more or less nominal semblance of monarchy — 
it has become an accepted fact. The progress of de- 
mocracy has not, of course, been continuous and un- 
broken. We have but to compare the republic of 
Athens with the principalities of the dark ages, or with 
France of the eighteenth century, to see that the de- 
velopment of self-government has not moved in a con- 
tinuous advance. But it is hardly to be denied that 
the principle of democratic rule has now become a 
permanent and essential factor in political institutions 
and that it alone can form the basis of the state of the 
future. 

READINGS SUGGESTED 

Aristotle's Politics (Jowett's translation, 1885), bk. i. 
Jenks, E., History of Politics (1900), chap, i-vii. 

FURTHER AUTHORITIES 
Frof'man, E. A., Comparative Politics (1873). 
McLennan, J. F., The Patriarchal Theory (1885). 
Morgan, L. H., Ancient Society (1877). 
Westermarck, E., History of Human Marriage (1891). 
Tarda, G., Les Transformations du Droit (13th edition), (1900). 
Fowler, W., The City-State (1893). 



CHAPTER IV 

THE SOVEREIGNTY OF THE STATE 

1- Analysis of the Conception of Sovereignty ; Meaning* of Law and 
Right. — 2. The Location of Sovereignty in Existing Governments. 
— 3. Criticism of the Doctrine of Sovereignty ; Sir Henry Maine's 
Objections. — 4. Theory of Political Sovereignty. — 5. Criticism. — 
6. Dual or Divided Sovereignty. 

1. Analysis of the Conception of Sovereignty ; 
Meaning of La-w and Right. Having considered in 
the preceding chapters the general idea of the state as 
an organized community occupying a definite territory, 
it is next necessary to make a further analysis of the 
organization itself. This will involve the discussion of 
the relations existing between the individual citizen 
and the state as a whole. The two central points 
around which the discussion of the present and the suc- 
ceeding chapter will turn, are those of the sovereignty 
of the state, and the liberty of the individual. These 
two ideas, which appear at first sight to be mutually 
contradictory, will be shown to be not only reconcila- 
ble, but complementary and correlative to one another. 

The question of the sovereignty of the state has 
long been a vexed topic of political discussion, and one 
that has given rise to the most serious difficulties and 
misunderstandings. The proposition that the state is 
absolutely sovereign over the individual has proved 
itself a stumbling-block and a rock of offense to the 
student of political theory. Take, for example, the 



THE SOVEREIGNTY OF THE STATE 53 

enunciation of the principle o£ sovereignty given by 
Professor Burgess. '' I understand by it," lie says, " the 
original, absolute, unlimited, universal power over the 
individual subject and all associations of subjects." 
This is a hard saying and one calculated to call forth 
at first sight a most emphatic contradiction. It seems 
to sanction the tyranny of the state, and to involve 
the sacrifice of individual rights. A nearer analysis 
of the proper meaning to be attached to the sove- 
reignty of the state ought to rob it of all offensive 
connotation. What is meant is simply this. The state 
is an organized community. It comes into existence 
when the relations of control over and obedience from 
the individual person are established. This obedience 
may or may not receive the approval of the individual 
rendering it. The fact of obedience is all that is needed 
in order that the state may be said to exist. Some- 
where within the state there will exist a certain per- 
son or body of persons whose commands receive obe- 
dience. The commands may be just or unjust, morally 
speaking, and the persons in power may be put in a 
position to issue them, either by general consent or by 
the use of physical force. But in either case they are 
able to make their commands good by actual coercion. 
Unless there is such a body there is no state. The 
commands thus given are called laws. A law, then, is a 
command issued by the state. Can there, then, be any 
limit, any legal limit, to the sovereignty, or legal su- 
premacy, of the state ? Obviously not, for such a limit 
would imply a contradiction in terms. A legal limit 
must mean a limit imposed by a lawgiving authority. 
Now the lawgiving authority is the sovereign power 



54 THE NATURE OF THE STATE 

of the state, and anj^ limits it miglit put on its own 
power would be removed as soon as it saw fit to remove 
them. The lawgiving power of the lawgiving body is 
therefore of necessity unlimited. The state, in other 
words, is legally sovereign. Looked at in this light the 
matter simply resolves itself into an equation in terms. 
An examination of the fundamental definition of law 
and sovereignty laid down by the English jurist John 
Austin ^ may make still clearer this point of view. 
" If a determinate human superior not in the habit of 
obedience to a like superior receive habitual obedience 
from the bulk of a given society, that determinate 
superior is sovereign in that society, and that society 
(including the superior) is*^ society political and inde- 
pendent." According to this, then, a state (or " society 
political and independent," as Austin calls it) is a com- 
munity in which such obedience is given and received. 
The fact of rule and obedience is the test of the ex- 
istence of a state. A law is a command calling for 
such obedience. We must carefully note, too, the con- 
ception of a right, a legal right, which will follow from 
these premises. It will mean any privilege or immu- 
nity enjoyed by a citizen as against any of his fellow 
citizens, granted by the sovereign power of the state 
and upheld by that power. This, it will be seen, is al- 
together different from a right in the ethical or moral 
sense. Before the French Eevolution, for example, 
under the state existing in the eighteenth century, the 
feudal lord had a " right " to collect most oppressive 

1 John Austin (1790-1859), the chief English writer on jurisprudence 
of the nineteenth century, is to be regarded as the founder of the 
analytical school, whose views have exercised a Daramount influence 
on legal thought in England and America. 



THE SOVEREIGNTY OF THE STATE 55 

dues from his iDferior. Similarly a despot might grant 
to one of his underlings the "right " of life and death 
over the people of a subjugated province. It will 
follow that in the organization of the state the individ- 
ual can have no " rights " against the state itself. For 
this, since it is the state which creates a legal right, 
would involve a contradiction in terms. It is to be 
observed that as thus understood, the conception of 
sovereignty, law, and right is altogether divorced from 
morality and ethics. 

The misunderstanding of this restricted sense in 
which the state is sovereign and law is unlimited in its 
power leads to an altogether fallacious form of objec- 
tion. Surely, it is urged, the state has no right to inter- 
fere with such things as the religion and private life 
of the individual? Surely there are limits to the pro- 
vince in which the commands of the state may intrude ? 
There are assuredly such limits in the moral sense; 
certainly most persons would think it morally wrong 
for the state to dictate as to the religious creed of the 
individual. But this does not imply any legal limit to 
the jurisdiction of the state. The sovereign body of the 
state can be under no legal restriction as to its inter- 
ference in religion or any private matter. If it were 
under such a limitation then it would not be a sovereign 
body ; the sovereignty would lie in that person or per- 
sons in whose power it lay to assign and mark off these 
limits. The same answer is to be made to the various 
other attempts to put a "limit " on the extent of sover- 
eign power. Bluntschli, for instance, tells us that " the 
state as a whole is not almighty, for it is limited ex- 
ternally by the rights of other states, and internally by 



66 THE NATURE OF THE STATE 

its own nature and by tlie rights of its individual mem- 
bers." ^ Bentbam claimed that the sovereignty of the 
state was limited by its treaties with other states. But 
each of these " limits " is of an ethical, not a legal 
character. Legally speaking the state is almighty. 

The misunderstanding so easily engendered here is 
heightened by the ambiguity of some of the termino- 
logy employed in this connection. The word right * 
has both its moral and its legal sense. In the former 
application it extends over the whole field of conduct, 
and refers to all those actions and forbearances which 
it is our moral duty to perform ; in the legal sense it 
refers only to those actions or forbearances the p^- 
formance of which is rendered compulsory by the 
coercive power of the state. Similarly the word sove- 
reignty is not only used in the sense of legal suprem- 
acy, but has also another connotation. It is used, 
that is to say, in a purely nominal sense, to indicate 
the titular supremacy of a monarch. King Edward 
YII is the sovereign of the United Kingdom of Great 
Britain and Ireland, but this is only titular and not 
legal sovereignty. The distinction is sufficiently obvi- 
ous to need no further explanation. 

2. The Location of Sovereignty in Existing 
Governments. The nature of sovereignty and law 
as thus described may be further illustrated by exam- 
ining its actual application to the case of some of the 
chief states of the world. The example most easily 
understood is that of the British Empire. Here the 
sovereign legal authority lies in the Parliament, — 
the word Parliament having of course its technical 

1 Theory of the State, bk. vii, chap. i. 



THE SOVEREIGNTY OF THE STATE 57 

legal meaning of king, lords, and commons. Parlia- 
ment is an absolute legal sovereign. Every law that it 
sees fit to make is, ipsofacto^ a valid law. There is no 
(legal) restriction on the extent of its jurisdiction. 
No British court can question the validity of a statute 
duly passed by Parliament. It is (legally) quite unre- 
strained by custom, by the legislation of the past, or by 
any of the written documents (Magna Carta, etc.) which 
may be said to form part of the British Constitution. 
No individual citizen has any (legal) " rights " which 
the sovereign power of Parliament could not annul ; no 
local body or colony has any powers of self-government 
which an act of Parliament could not abolish. 

The example of the British Empire seems to show 
the legal supremacy of the state in simple form. The 
case of the United States, though more complex, is 
reducible to the same elements. Here, at first sight, 
the presence of the sovereign body is not so apjoarent. 
The powers of the government of any state of the 
Union — either executive or legislative — are pov/ers 
of limited legal extent. Similarly the powers of the 
federal government — of the President and of Con- 
gress, or of both together — are powers of limited ex- 
tent. The Congress is not legally empowered, as is 
the British Parliament, to make any law it may think 
proper, and the courts can question the validity of an}^ 
statute, either state or federal, which transcends the 
legal powers of those who made it. For example, a fed- 
eral law imposing an export duty would not be legally 
binding. But all this is only to say that neither the 
President nor the Congress nor the state government 
is the body invested with the sovereign power of the 



58 THE NATURE OF THE STATE 

state. The supreme authority lies elsewhere. It is in 
that body which has power (legally) to make any law 
it wishes, that is to say in the body which has the legal 
right to amend the Constitution of the United States. 
It is true that this body, consisting of a two-thirds 
majority of Congress, or a special convention, with the 
ratification of three fourths of the state legislatures or 
of special conventions,^ is not in permanent session 
as a united governing body. ' But it is clear that theo- 
retically at any rate it exists, and may be looked upon 
as having a legal supremacy as complete as that of 
the British Parliament. In like manner in the case 
of France, neither the President nor the Chamber of 
Deputies nor the Senate has unlimited legal competence. 
The powers of all of them are restricted by the " consti- 
tutional laws " of the French Republic. But the Senate 
and the Deputies may be fused together into a joint 
session or national assembly, in which capacity they 
may amend the constitution and are legally supreme. 

3. Criticism of the Doctrine of Sovereignty; 
Sir Henry Maine's Objections. Such is in the main 
the conception of sovereignty and law which is par- 
ticularly associated with the modern English school of 
jurists, the analytical school, as it is often called. It 
may be considered on the whole the most satisfactory 

1 " The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose amendments to this Constitution, or on the ap- 
plication of the Leg'islatures of two thirds of the several States, shall 
call a convention for proposing amendments which in either case shall 
be valid to all intents and purposes, as part of this Constitution, when 
ratified by the Legislatures of three fourths of the several States, 
or by conventions in three fourths thereof, as the one or the other 
mode of ratification may be proposed by Congress." Constitution ofthn 
United States, Art. V. 



THE SOVEREIGNTY OF THE STATE 69 

basis for an analysis of the political state. It has, how- 
ever, met with severe and searching criticism, and has 
by no means received a universal acceptance. It is only 
reasonable, therefore, to present in connection with it 
some of the chief points of attack. The objections raised 
against it are directed to show that it is only of a for- 
mal and abstract nature, that it is inadequate in that 
it does not really indicate the ultimate source of polit- 
ical authority, and that it presents an erroneous concep- 
tion of the nature of law. 

The first of these objections to the Austinian theory is 
especially urged in the criticism offered by the English 
jurist Sir Henry Maine in his Oxford lectures on the 
" Early History of Institutions." ^ From his seven years' 
experience as legal member of the council for India, 
Maine was brought in contact with a civilization of an 
essentially different character from the environment 
of English legal institutions which had been the basis 
of Austin's work. In Eastern countries immemorial 
custom reigns supreme. The idea of deliberate statu- 
tory enactment is alien to the oriental mind, and the 
most ruthless of Eastern despots finds his power con- 
trolled by the barriers of ancient usage and religious 
awe. Maine was, therefore, led to question whether 
there is " in every independent political community 
some single person or combination of persons whicli 
has the power of compelling the other members of the 
community to do exactly as it pleases." The presump- 
tion that every community, except during temporary 
intervals of disturbance, contains this individual or 
collegiate sovereign " as certainly as the centre of 

^ See Early Histwy of Institutions, lectures xii and xiii. 



60 THE NATURE OF THE STATE 

gravity in a mass of matter," seemed to him unwar- 
ranted by historical or actual fact. Particularly is this 
the case with communities of the oriental type. Maine 
instances the example of Eunjeet Singh, the despot 
of the Punjaub, " the smallest disobedience to whose 
commands would have been followed by death or mu- 
tilation." In spite of this ruler's extensive power he 
never " issued a command which Austin would call a 
law. . . . The rules which regulated the lives of his 
subjects were derived from their immemorial usages, 
and these rules were administered by domestic tribu- 
nals." The inevitable conclusion seems to be that the 
conceptions of sovereignty, state, and law adopted in 
the Austinian jurisprudence are inapplicable to com- 
munities of this description. But it is not only in 
regard to oriental society that Maine finds Austin's 
analysis inadequate. Even in the world of western 
civilization it is only true as the result of a process of 
abstraction which " throws aside all the characteristics 
and attributes of government and society except one," 
namely, the possession of force ; this explanation of 
political power by reference solely to a single attribute 
disregards at the same time " the entire history of the 
community, . . . the mass of its historic antecedents, 
which in each community determines how the sove- 
reign shall exercise, or forbear from exercising, his ir- 
resistible coercive power." 

The nature of this objection had, indeed, been in some 
measure anticipated by Austin himself. In order to 
cover all those cases of usage in which not the direct 
command of the sovereign but dictates of customary 
procedure obtained sway, he laid down the maxim, 



* THE SOVEREIGNTY OF THE STATE 61 

"What the sovereign permits he commands." The ap- 
plication of this doctrine may be best seen in the case of 
the English common (or customary) law. This is a body 
of regulations never expressed in the form of statutes 
issued by the sovereign Parliament, but existing from 
ancient times, and constantly modified and expanded 
by the interpretation of the courts. It would be quite 
wrong, Austin argues, to hold that the existence and 
continuance of this body of law is any indication of a 
limitation of the sovereign power of Parliament. For 
since the latter is admittedly competent to alter or abro- 
gate the common law as it sees fit, the continued exist- 
ence thereof is to be viewed as virtually by command 
of Parliament. This argument is undoubtedly true in 
reference to the legal validity of the common law. The 
attempt, however, to apply it to such cases as that of 
the Punjaub despot seems entirely erroneous. For in 
this instance the sovereign has no alternative but to 
" permit " what he cannot alter. Only an exaggera- 
tion of terms could convert this into sovereignty. On 
the same ground any one might " permit " the law of 
gravitation to continue in force. 

It may perhaps reasonably be held that Austin's 
analysis is applicable to modern civilized states, but 
inapplicable to half-organized or primitive communities. 
Even in the case of civilized states, it is true that the 
theory is in a certain sense an abstraction. *' It is true," 
says Sir James Stephen, in speaking of the theory of 
sovereignty,^ "like the propositions of mathematics or 

^ IIorcE Sabbaticce, second series, chap. i. The author is speaking- of 
the theory as laid down by Hobbes. but tlie remarks apply equally well 
to the more modern form of the doctrine. 



62 THE NATURE OF THE STATE 

political economy, in tlie abstract only. That is to say, 
the propositions which it states are propositions which 
are suggested to the imagination by facts, though no 
facts completely embody and exemplify them. As there 
is in nature no such thing as a perfect circle, or a com- 
pletely rigid body, or a mechanical system in which 
there is no friction, or a state of society in which men 
act simply with a view to gain, so there is in nature no 
such thing as an absolute sovereign." With these lim- 
itations the Austinian theory may be looked upon as 
substantially correct. Its application is to be viewed 
as limited to communities definitely organized. The 
analysis of political power which it offers is not meant 
as an explanation of the ultimate source, the first cause, 
of authority,^ but merely intended as a universal ab. 
stract formula, indicating the method of its operation in 
the modern world. To accept the doctrine in this sense, 
is of course necessarily to restrict the connotation of 
the terms state and law. The term state will include 
only communities possessing the requisite finality of or- 
ganization, and fixed relations of command and obedi- 
ence. A law will connote only a command issued, either 
directly or indirectly (through deliberate refusal to con- 
travene an established usage) by the sovereign organi- 

i"The question who is the legal sovereign," says Bryce, "stands 
quite apart from the questions why is he sovereign, and who made him 
sovereign. The historical facts which have vested power in any given 
sovereign, as well as the moral grounds on which he is entitled to 
obedience, lie outside the questions with which law is concerned, and 
belong to history, to political philosophy, or to ethics ; and nothing but 
confusion is caused by obtruding them into the purely legal questions 
of the determination of the sovereign and the definition of his powers.'* 
Studies in History and Jurisprudence. 



THE SOVEREIGNTY OF THE STATE 63 

zation of the state. What is thus lost in width of con- 
notation will be gained in precision and significance. 

Many authors prefer, however, to widen the terms 
state and law, in order to meet Maine's criticism, and 
to include the oriental or other communities whose 
political cohesion does not correspond to the Austinian 
analysis. Woodrow Wilson,^ for instance, presents a 
conception of law which does not identify it with a 
definite command, but endeavors to include in it those 
customary usages which have become of binding force. 
" Law," he says, " is that portion of the established 
thought and habit which has gained distinct and formal 
recognition in the shape of uniform rules backed by 
the authority and power of government." Of these 
rules deliberate enactment is only one of the contrib- 
utory sources. They arise in part from long standing 
custom "shaped by the cooperative action of the whole 
community, and not by any kingly or legislative com- 
mand." Among the other sources of law are the rules 
of conduct dictated by religious belief, and the decisions 
of those who adjudicate upon the law already existing 
and thus expand its meaning. The view here adopted 
by Professor Wilson is intended to harmonize the ana- 
lytical account of law with the criticism offered by 
Sir Henry Maine. But it is perhaps open to question, 
whether in the case of civilized states the maxim " what 
the sovereign permits he commands " will not bring the 
sources of law above mentioned within the sphere of 
the Austinian formula. 

4. Theory of Political Sovereignty. In addition 
to the criticism of the Austinian theory of sovereignty 

^ The State, chap, xiv- 



64 THE NATURE OF THE STATE 

thus indicated, exception has been taken to it upon 
a somewhat different ground. The conception of legal 
authority, it is argued, though undeniable as far as 
it goes, does not go far enough ; while indicating the 
person or body of persons legally competent to issue 
sovereign commands to the rest of the community, 
it does not really trace out the ultimate repository 
of political power. In a despotic monarchy, the will of 
the monarch may be the sole lawful authority, but the 
monarch himself may be merely the pliant tool of a 
cunning priest or dominating vizier. In countries with 
representative government, the elected governing body 
may have or seem to have a temporary legal control, 
but what are we to say of the general body of electors, 
whose will they represent, and from whom they derive 
their authority ? Is it an adequate explanation of politi- 
cal cohesion and obedience to stop short of the legal 
supremacy of a king or legislature, whose power may 
be nominal, illusory, or delegated, and to refuse to 
recognize the real and paramount source of authority 
which lies behind it? 

On these grounds several writers have recently sought 
to amend the Austinian theory by appending to the con- 
ception of pure legal sovereignty that of real, or "poli- 
tical sovereignty." ^ Their intention is not to set aside 
the result of Austin's analysis, but merely to draw at- 
tention to the fact that it does not seem to offer a com- 

^ For the theory of political sovereignty the student may consult A. 
V. Dicey, Law of the Constitution; David G. Ritchie, Principles of State 
Interference ; Sidgwick, Elements of Politics, chap, xxxi, and M'Kechnie, 
State and Individual, chap, ix, x. All of these authorities consider 
the distinction between legal and political sovereignty both tenable 
and valuable. 



THE SOVEREIGNTY OF THE STATE 65 

plete explanation of the nature and location of supreme 
political power. " Behind the sovereign which the law- 
yer recognizes, there is," says Professor Dicey, "another 
sovereign to whom the legal sovereign must bow." 
Professor Sidgwick illustrates the point involved by 
constructing hypothetical cases in which the ultimate 
political power is clearly not in the hands of the legal 
sovereign. " An irresponsible dictator appointed by a 
popular assembly for a term of years and not desiring 
reappointment " might be said to be legally and actually 
sovereign. But should he be anxious for reappointment, 
then the assembly to whose wishes he must bow be- 
comes the paramount political influence, and his legal 
sovereignty is no longer the final seat of actual power. 
Or let us " suppose that a monarch habitually obeys a 
priest, not from fear of the extra-mundane penalties 
threatened by the latter, but from fear of finding it 
difficult to obtain obedience from his subjects if they 
believe him to be a special object of God's anger — we 
shall agree that he no longer possesses completely sover- 
eign power." Following upon this line of argument we 
might well expect to find that the legal and the political 
sovereigns would but rarely coincide. In one state the 
priesthood, in another the military or landed classes, 
in another the personal entourage of the king or the 
predominant influence of a metropolis, might supply 
the real motive power that controls the public adminis- 
tration. 

Here it might well be suggested that the sovereign 
political power would in many cases lie witli the gen- 
eral mass of the people, or at any rate with the general 
mass of voters, who constitute in democratic countries 



66 THE NATURE OF THE STATE 

about one fifth of the entire population. Austin him- 
self, in this particular, fell into an amazing error in 
that he attempted to attribute not the political but the 
legal sovereignty itself to the body of the electorate. 
The fallacy ^ is here obvious. For although the voters 
are empowered by law to elect members of the legisla- 
ture at stated intervals, they have (legally) no power 
of political action beyond this. Under most govern- 
ments they cannot pass a law or negative measures 
of the legislature. In Grreat Britain, for instance, 
the Parliament (legally speaking) would be perfectly 
competent to pass a law declaring its own existence 
permanent and robbing the voters of their electoral 
privileges. Only in a country where the system of the 
initiative and the referendum" were made obligatory 
and universal could the electors be said to be legally 
sovereign. But without falling into this confusion 
whereby Austin mars the precision of his own system, 
it may be argued with much plausibility that the ulti- 
mate political sovereignty rests with the electorate. 
Much, however, may be advanced against this view. Is 
it not quite conceivable that the voters themselves may 
be under the dominance of a priesthood, or practically 
under the dictates of the land-owners or aristocracy or 
some particular class ? In such cases the political sov- 
ereignty would have to be traced a step beyond the 
electorate. Is it not, moreover, to be supposed that the 
electorate may be largely influenced by the other four 
fifths of the nation, who constitute the non-voting class ? 

1 Professor Sidgwick in an appendix to liis Elements of Politics de- 
monstrates the absurdity of Austin's position. 

2 See part ii, chap, iv, below, Judiciary and Electorate. 



THE SOVEREIGNTY OF THE STATE 67 

It does not seem to follow that tlie voters of a demo- 
cratic country always and of necessity represent the 
final and ultimate source of authority. 

5. Criticism. Indeed, the more one searches for this 
final authority the more it seems to elude one's grasp. 
At its first statement the idea of a political sovereignty 
appears eminently reasonable. On closer examination 
it becomes a sort of political " first cause," and is as 
unfindable in the domain of politics as in that of phys- 
ics. The moment one passes from the dry certainty 
of the Austinian conception of legality, all is confusion. 
The particular set of persons in a modern state who 
are invested with unlimited law-making power 'are a 
definite and findable body. The jDarticular person, or 
set of persons, whose will is in reality supreme, fades 
upon analysis into a vague complexity. 

Professor Ritchie and others have sought to avoid 
this difficulty, by laying down the theory that the ulti- 
mate repository of political power is always found in 
the mass of the people. By whatever routes it is traced, 
whether directly through electoral power, or indirectly 
through influence, intimidation, or potential rebellion, 
the final source of authority is here to be discovered. 
" The people " possess the j^hysical power. In the last 
resort — the appeal to force — they are bound to pre- 
vail. Any form of rule to which they submit exists 
thei-efore only by virtue of their tacit consent. AVe 
have thus a theory of popular sovereignty carried to an 
extreme point. Such a theory does not content itself 
with saying that the people, the majority of the people, 
onrjht to possess the supreme power, but that in all cases 
they actually do possess it. Having the physical supe- 



68 THE NATURE OF THE STATE 

riority which would enable them if sufficiently pro- 
voked to annihilate the existing government, there must 
always be limits to the extent of coercion that they 
will suffer. Obedient as they may be within these 
limits, they are in the last resort the masters. The con- 
sent by which they permit the existence of the govern- 
ment, is a tacit, and perhaps unconscious, acquiescence 
rather than the explicit formula of contract that was 
present to the minds of Rousseau's citizens ; none the 
less it is true that they do give this consent, and that 
it is the real universal basis of political sovereignty. 
" The Czar of all the Russias," says Mr. Ritchie, 
" rules by the will of his people, as much as does the 
executive of the Swiss Federation." ^ 

Attractive as is such a theory of popular sovereignty, 
it rests upon grounds essentially fallacious. It assumes 
that the superiority in actual physical force must of 
necessity rest with the mass — the majority — of the 
people. To suppose this is to leave altogether out of 
sight the question of military equipment, organization, 
and mutual understanding. A nation of a million un- 

1 Professor Ritchie includes in the sources of political power all 
those influences, historic and actual, which contribute to the present 
disposition and opinion of the governed. " The ultimate political sove- 
reignty is not the determinate number of persons now existing- in the na- 
tion, but the opinions and feelings of these persons ; and of these opin- 
ions and feelings the traditions of the past, the needs of the present, 
and the hopes of the future all form a part." In the ease of the Russian 
people, Mr. Ritchie argues that *' the belief in the Czar's divine right 
is the source of his power, and the ground of his obedience." A similar 
point of view appears in M'Kechnie's State and Individual. " The effect- 
ive force of a nation remains with the whole body of its members, 
whatever forms of expression or outlet it may find, and whatever agents 
may be legally empowered to act or think for it. The real or ' political ' 
Bovereign lies in the will of the people." 



THE SOVEREIGNTY OF THE STATE 69 

armed men could easily be overawed by a force of a 
hundred thousand soldiers equipped with modern weap- 
ons and acting as a disciplined unit. Because a hun- 
dred convicts " acquiesce " in the control exercised by 
a dozen armed sentinels, it cannot be argued that the 
power of the sentinels rests either immediately or ulti- 
mately upon the consent of these convicts. Whatever 
be the proper interpretation of the political cohesion 
of modern Russia, it is at least conceivable that the sup- 
port extended to the autocracy by the vast army in its 
pay may have as much to do with its maintenance as the 
good-will of the people at large. It seems evident upon 
examination that the numerical majority is not of ne- 
cessity always the stronger power. It becomes so only 
in proportion as it enjoys the advantages of organiza- 
tion, equipment, and ability to act on a preconcerted 
plan. Hence in order to make the theory of political 
sovereignty stand upright it is necessary to again shift 
the ground and to claim that the ultimate sovereignty 
lies not with the mass of the people, nor with the nu- 
merical majority, but with the strongest group of per- 
sons trained to act together. But since a group is usually 
trained only to act together in a prescribed way, and 
at the dictates of a particular person or set of persons, 
it is clear that it is not the collective will of this armed 
force itself which exercises the supreme control, but 
that of the person or persons whom they are individu- 
ally trained to obey. Thus the search for ultimate sov- 
ereignty relapses into the same vagueness as before. 

6. Dual or Divided Sovereignty. The peculiar 
situation of the United States In reference to the ex- 
ercise of supreme and unlimited power has given rise 



70 THE NATURE OF THE STATE 

to another attempt to alter this universal formula of a 
single sovereign body. In this country, as already said, 
neither the federal government nor the government of 
an individual state has unlimited power. The precise 
nature of the constitutional power of the two was long 
a subject of intense controversy. In this controversy 
there was developed the theory of a divided or dual 
sovereignty. According to this doctrine the totality of 
sovereign power was divided between the state and 
federal governments, each of which was sovereign in 
its own province, but was legally limited outside of its 
own province by the sovereignty of the other. Such 
a view of sovereignty is utterly inconsistent with the 
conception of sovereign power discussed above. The 
proper application of the analytical view of sovereignty 
to a federal government will be discussed in dealing 
with the general subject of federal organization. 

READINGS SUGGESTED 
Austin, J., Lectures on Jurisprudence (Ith edition, 1879), vol. i, 

lecture vi. 
Maine, Sir H., Early History of Institutions (1875) (4th edition, 

1885), chaps, xii, xiii. 
Sidgwick, H., Elements of Politics (2d edition, 1897), chap, 
xxxi. 

FURTHER AUTHORITIES 

Bryce, James, Studies in History and Jurisprudence, Essay X 

(1901). 
Merriam, C. E., History of the Theory of Sovereignty since 

Rousseau (1900). 
Stephen, Sir James, HorfE Sabbaticfe, Second Series, chap, iv 

(1892). 
M'Kechnie, W. S., The State and the Individual (1896). 
Ritchie, D. G., Principles of State Interference (1891). 
Dicey, A. V., Lawr of the Constitution (1st edition, 1885). 



CHAPTER V 

THE LIBERTY OF THE INDIVIDUAL 

1. Formulation of the Idea of Civil Liberty ; its Dependence on a 
Coercive Sovereign Power. — 2. Special Senses sometimes attached 
to the Term Liberty. — 3. Organic Theory of the State. — 4. Criti- 
cism. — 5. Elaborate Analogies of Spencer, Schaffle, etc. ; the Per- 
Bonality of the State. — 6. Criticism. 

1. Formulation of the Idea of Civil Liberty; 
its Dependence on a Coercive Sovereign Povrer. 

The formulation of the theory of the sovereignty of 
the state does not exhaust the consideration of the re- 
lations existing between the state and the individual. 
The present chapter is to be devoted to the further 
elucidation of the position of the individual under 
organized political control, and to the nature and scope 
of individual liberty. At first sight, the ideas of state 
sovereignty and individual liberty appear in sharp con- 
trast. When we say that the state is legally supreme.^ 
that there is no limit to its lawful power, and that the 
individual can have no lawful rij^hts as a^^ainst its 
authority, we seem to have denied the existence of in- 
dividual liberty. A closer examination of the meaning 
to be attached to the terms involved will serve to dis- 
sipate this view. It will appear that sovereignty and 
liberty, far from being contradictory, are correlative 
terms, and that no legal conception of individual lib- 
erty is possible without the assumption of a sovereign 
power. 



72 THE NATURE OF THE STATE 

Let us begin by observing tbat such terms as " lib* 
erty," "freedom," and "free" are used in a variety of 
senses, and with great latitude of connotation. "To 
Bacon and to King James," writes Professor Ritchie, 
" a ' free ' monarchy meant an absolute monarchy, so 
that a 'free' monarchy is incompatible with what we 
call ' free ' government. The ' liberties ' of corpora- 
tions, classes, or individuals mean their special privi- 
leges, and thus involve considerable interference with 
' liberties ' of the non-privileged. ' Freedom of contract ' 
may result in the practical bondage of one of the parties 
to the other. A ' free ' church may allow less ' liberty ' 
of thought than churches which are not liberated from 
the state." ^ To the difficulties suggested by these 
special instances must be added the fact that the term 
liberty is used also as a vague generality to stand for 
something evidently desirable, and yet so simple in its 
nature as to need no further definition. It is freely 
assumed that every one ought to have complete liberty, 
and that every violation of liberty is an injustice, with- 
out the need being felt of any special inquiry into 
the meaning of liberty itself. To reduce the term to a 
definite and exact signification will serve at once to 
destroy the mythical and impossible idea of individual 
freedom, in the light of which the coercive power of 
the state seems unjustifiable. Such an idea appears in 
extreme form in the assumption, already referred to, 
of a " natural liberty," enjoj^ed by man independently 
of, and antecedent to, the existence of the state, and of 
which the institution of the state constitutes an abridg- 
ment. " What a man loses by the social contract," said 

1 Ritchie, Natural Rights^ chap. vii. 



THE LIBERTY OF THE INDIVIDUAL 73 

Rousseau, " is his natural liberty and an unlimited right 
to anything that tempts him which he can obtain." ^ 
Of a similar character is the confused ideal of liberty 
which lies at the basis of anarchism, or the negation 
of the right of coercion. 

On examination it will appear that such a concep- 
tion of liberty is impossible, except it be for one person 
omnipotent in power. The claim that a person in the 
enjoyment of natural liberty would have an unlimited 
right to anything he might desire, would carry with it 
the consequence that a great number of persons might 
have an unlimited right to the same thing. It is diffi- 
cult to attach any meaning to the words " liberty " and 
" right " that will make such a proposition anything 
but absurd. Indeed, the statement is clearly self-con- 
tradictory and inconsistent. " Liberty in its absolute 
sense," says Lieber,^ " means the faculty of willing 
and the power of doing what has been willed, without 
influence from any other source, or from without. . . . 
In this absolute meaning there is but one free being, 
because there is but one being whose will is absolutely 
independent of any influence but that which he wills 
himself, and whose power is adequate to his absolute 
will, — who is almighty." It is clear, then, that a lib- 
erty of this absolute and unrestrained character is an 
impossibility for every individual at the same time. It 
can exist neither by the agency nor by the absence of 
the state. The utmost freedom of action that each and 

^ Social Contract, bk. i, chap. viii. 

2 Fninz Lieber, Ciinl Liberty (18:)2). Lieber (1800-72), one of the 
most (listing-uished of American writers on political science, was for 
some time a professor at Columbia Colleg-e. Of his other works, Po- 
litical Ethics (1838) is perhaps the most important. 



74 THE NATURE OF THE STATE 

every individual can enjoy upon like terms at the same 
time is to be completely unrestrained in his actions in 
so far as they do not interfere with the like freedom 
of his fellows. This conception of liberty, though lim- 
ited, is entirely self-consistent. The liberty of one is 
not a contravention of the liberty of another. Such 
is the interpretation of liberty found in the famous 
Declaration of the Rights of Man, adopted in France 
in 1789 : " Liberty consists in the power to do every- 
thing that does not injure another." Herbert Spencer 
expresses the same idea in what he calls the " formula 
of justice : " " Every man is free to do that which he 
wills, provided he infringes not the equal freedom of 
any other man." 

As thus conceived, liberty is not inconsistent with 
the exercise of coercive power. On the contrary, since 
the freedom from interference can only be enjoyed 
by the forcible prevention of interference, liberty is 
seen to be dependent upon the existence of authority. 
It is the state which guarantees this immunity to its 
citizens, whose " rights " are thus brought into legal 
existence by being clothed with the " sanction " or com- 
pelling force of the power of the state. The apparent 
paradox between a sovereign authority and a free citi- 
zen is thus explained. No freedom, except for a single 
being, can be absolute and complete. Such freedom as 
can be enjoyed by all must from its nature imply a 
compulsory restriction on the action of each. It is the 
office of the state to effect this restriction, and in so 
doing to bring liberty into being. It is usual to attach 
to this conception of individual freedom effected by the 
existence of a coercive state the term " civil liberty." 



THE LIBERTY OF THE INDIVIDUAL 75 

A further point of great importance is to be noted 
in connection witli the present topic. It is true that 
liberty as thus defined is only possible for the indi- 
vidual by the action of the state. It does not follow, 
however, that it is the duty of the state to find the 
ideal of its action in the maintenance of individual 
liberty ; that is to say, to confine its operating to en- 
forcing non-interference, and to extend its coercive 
power no further than is necessary to prevent the citi- 
zens from interfering with one another. Writers of 
various schools, and especially the individualists of the 
earlier nineteenth century, have held this to be the 
sole duty of government. The conception of liberty 
seemed to them to imply that no infringement of the 
principle could be justified. But the question natu- 
rally arises whether the state may not be warranted in 
exercising a positive as well as a negative coercion 
over its subjects. May it not with reason interfere 
with and curtail the liberty of a citizen, provided that 
the general good or his own advantage is thereby fur- 
thered ? The full treatment of this question will belong 
to our discussion of the proper province of govern- 
ment. All that need be noted in the mean time is that, 
whether the state is called upon to maintain the liberty 
of the individual, or whether it is held advisable that 
the state should interfere with his actions in a positive 
form, the existence of liberty is not logically incom- 
patible with the existence of the state, and can hardly 
be thought of as existing apart from it. 

2. Special Senses sometimes attached to 
the Term Liberty. The word liberty, in addition 
to the vague general use which we have discarded 



76 THE NATURE OF THE STATE 

and the definite conception of civil liberty which we 
have adopted, has also been used in political writings 
in other special senses.^ It is often used to designate 
a condition of national independence. When we refer 
to the present liberty of the Greeks, or the desire for 
liberty on the part of the Poles, it is evidently in this 
sense that the word is used. It is perhaps convenient 
to use the expression " national liberty " to indicate 
freedom of this kind. 

In the next place, there is a use of " liberty " which 
refers neither to freedom from interference nor to na- 
tional autonomy. When we say that the United States, 
France, and Great Britain enjoy the advantages of a 
free government, we mean thereby a government which 
is chosen by, and which is responsible to, the general 
body of the people. Liberty in this sense, or constitu- 
tional liberty, as it may be called, means popular govern- 
ment definitely established. Historically S23eaking, we 
often use the term constitutional liberty to refer to in- 
stances where not all the people, but only a minority of 
them, exercised the power of controlling the government. 
In England previous to the great reform and exten- 
sion of the franchise in 1832, tlie power of government 
was vested in the hands of a small minority of the 
whole nation. Since, however, the body of the people 
followed in the main the political lead thus given, and 
looked to the minority in question (the voting class) 
to protect them from possible tyranny of the crown, 
we may speak of this state of things as constitutional 

1 An excellent analysis of the different political sig-nifications of 
the term is given in Professor Seeley's Introduction to Political Science, 
Lectures V, VI. 



THE LIBERTY OF THE INDIVIDUAL 77 

liberty. Strictly, however, tlie term ought only to be 
used of a government in whicb the people rule. For 
if the name be applied to a system in which the gov- 
ernment is responsible only to a minority of the nation, 
it implies an unwarrantable disregard of the political 
status of the majority. 

Professor Burgess,^ followed by other American 
writers, sees fit to use the term civil liberty in a sense 
different from that explained above. Burgess claims 
that most European writers have unduly confused the 
idea of the state with that of the government ; the 
state ouo^ht to mean that fundamental oro^anization of 
the community by whose authority the government is 
created, and the power of the government limited. 
The government should mean only the ordinary mech- 
anism of administration.^ It is in this sense conceiv- 
able that the state may set a limit to the action of the 
government as against the individual, and grant to 
the latter certain privileges or immunities with which 
the government may not interfere. These immunities 
constitute the domain of civil liberty. In the United 
States, according to this view, the organization of the 
state is found in the body that makes and amends 
the Constitution. By the authority of this body it is 
forbidden to the ordinary government of the country 
(President, Congress, etc.) to interfere with the re- 
ligion or the free speech of the individual; the govern- 
ment may not impose an export duty, may not make 
a law impairing the obligation of contracts, or confer 

^ Political Science and Constitutintml Laiv, vol. i. 
2 See above, chapter i. Professor Burgess's distinction between the 
government and the state is not here accepted as valid. 



78 THE NATURE OF THE STATE 

a title of nobility.^ The civil liberty of tlie individual 
is therefore defined by Burgess to mean all those rights 
thus granted to the individual by the constitution- 
making power. Were all governments of the same 
form as that of the United States this application of 
the term civil liberty would be felicitous and useful. 
But as applied to the governments of England, France, 
Italy, and many other countries a difficulty occurs. In 
England the Parliament (king, lords, and commons) is 
supreme. It is therefore (according to this interpreta- 
tion) the state. It is also the government, ordinary and 
regular. It is hence not possible that it can forbid any- 
thing to itself by its own authority, or guarantee the in- 
dividual the possession of rights which it cannot legally 
set aside. The conclusion is obvious. There is no civil 
liberty in the constitutional law in Great Britain. To 
assert this is properly equivalent to asserting that 
there can be no civil liberty at all under the British 
government. " I pass over the subject of civil liberty 
in the constitution of England and France for the 
simple and entirely convincing reason that there is 
none in either." ^ This being so, it may well be doubted 
whether the term is appropriately used in the signifi- 
cance thus attached to it. A definition according to 
which the citizens of Hayti enjoy a wide measure of 

^ Constitution of the United States. 

'^ Burgess, Political Science and Constitutional Law, vol. i, part ii, 
bk. ii, chap. iv. Burgess does not deny that there is civil liberty in 
Great Britain, but says that it is created by statute, not by the consti- 
tution. But his position seems inconsistent. For he says (vol. i, p. 
174) that individual liberty "is a domain in which the government 
shall not penetrate." But in discussing civil liberty under the British 
and French systems, he asserts (vol. i, p. 262), " Every particle of civil 
liberty in both systems is at all times at the mercy of the government." 



THE LIBERTY OF THE INDIVIDUAL 79 

civil liberty, wliile those of Great Britain and its colo- 
nies possess none at all, becomes a little absurd. 

3. Organic Theory of the State. The question of 
liberty and sovereignty as hitherto discussed has been 
purely one of legal relations. It forms, however, only 
a part of the wider question of the general relation of 
the individual to the state, or to society at large. The 
view that is to be taken of the position in which the 
individual stands towards the state is of the highest 
importance, for on it will depend our decision as to the 
proper province of the action of government. In what 
has been said in the present chapter and in connection 
with the statement and criticism of the doctrine of the 
social contract, reference has been made to two corv 
flicting points of view. In the one instance the indi- 
vidual is looked upon as a separate self-contained unit 
who joins with his fellows for the formation of civil 
society in a purely mechanical fashion. The state from 
this point of view becomes merely a numerical aggre- 
gate. It is not justified in interfering with the indi* 
vidual further than to prevent his interference with 
any one else. Such a theory of social relations is often 
spoken of as an arithmetical, mechanical, or monad- 
istic theory of society.^ We have already seen fit 
in dealing with the social contract to reject such a 
view of the relative status of the individual and the 
state. 

As opposed to this we have at the other end of the 
scale what has already been referred to as the " organio 
theory of society," or of the state. This theory, either 
entire or in partial form, occupies a large place in the 

^ See J. S. Mackenzie, Introduction to Social Philosophy, chap. iii. 



80 THE NATURE OF THE STATE 

economic, political, and social philosophy of our time, 
and merits, therefore, a careful examination. What- 
ever be the earlier origins ^ to which it may be traced, 
it assumed a great prominence at the hands of various 
German writers of the middle of the nineteenth cen- 
tury, who advanced it in opposition to the more me- 
chanical view of society held by the dominant individ- 
ualist school in economics and political philosophy. 
The central idea of the theory is to endeavor to set 
aside the contrast between the individual and the state 
by amalgamating them into one. It discards all such 
ideas as mutual contract, reciprocal service, infrangible 
immunities, etc. It views the state and the individual 
as part and parcel of the same thing, both of them 
being included in what may be called the social organ- 
ism. As is the relation of the hand to the body, or the 
leaf to the tree, so is the relation of man to society. 
He exists in it, and it in him. As it is impossible to 
consider that the hand has a separate existence from 
that of the body, so is it impossible to divorce the 
individual from society. The antithesis, therefore, be- 
tween the single citizen and the collective state rests 
upon a false basis, and implies a view of society that is 
contrary to fact. 

4. Criticism. In criticising this theory it is first 

1 The philosophy of the Greeks may be said to aiford the fii'st begin- 
ning's of the organic theory. " Man," says Aristotle, " is a political ani- 
mal," and the whole tendency of Greek political thought was to insist 
on the subordination of the individual to the state. But the elaboration 
of the theory and its express application to the problem of govern- 
mental interference belongs to the nineteenth century. Such a view 
could only attain its full significance after the establishment of the 
evolutionary theory of the biological world. 



THE LIBERTY OF THE INDIVIDUAL 8i 

necessary to know to what extent the statement that 
society is an organism is intended to be true. Some 
writers have advanced it merely as an analogy designed 
to elucidate by a striking comparison the nature of 
social organization. The continuity and gradual evo- 
lution of the state, the insensible gradations by which 
it develops in efficiency and complexity, are compared 
to the growth of a plant or animal. The different de- 
partments, councils, officials, etc., which are found in 
a modern administration, present in their specialized 
functions and adapted capabilities an analogy with the 
special organs of a living structure. The single individ- 
ual, without whom the state cannot exist, and whose 
activities presu23pose the existence of the state, sug- 
gests the germ cell which forms the basis of a living 
organism. Viewed in this light, the organic theory has 
met with a very wide acceptance, especially by the 
modern German school of writers on the social sciences. 
It is indeed difficult to quarrel with this or any other 
contention as long as it remains merely in the form of 
analogy. When we say that society is like an organism 
we are expressing an opinion of a very indefinite char- 
acter. The point of the statement will dej^end on the 
amount of the likeness. In one sense every man is like 
every other ; in another sense each man has a different 
appearance. To say, therefore, that there are certain 
things about society which suggest an organism, is to 
say what is hardly open to refutation. The real point 
of controversy comes in when we consider how far our 
opinions on social and political problems are to be af- 
fected by this view. Is it to be looked on merely as an 
interesting and ingenious comparison, or are we to see 



82 THE NATURE OF THE STATE 

in it a profound truth in the light of which the actual 
solution of social difficulties is to be sought ? ^ 

It may perhaps be reasonably claimed that the im- 
portance attached to this view by many sociological 
writers is altogether exaggerated. It is hard to see in 
what way it offers a practical programme or line of 
direction in dealing with applied politics. The indi- 
vidualistic theory, dictating the abstinence of the state 
from all positive interference, had at least the merit 
of indicating a recognizable course of conduct. The 
utilitarian theory, propounding the greatest good of 
the greatest number as the goal of social effort, offers 
also an objective point theoretically distinct, however 
much its special applications might in practice be open 
to dispute. But the organic theory, in telling us that 
we and our institutions grow and are not made, hardly 
offers a practical guide to political conduct. It is im- 
possible that we can sit politically passive and watch 
ourselves grow, and it is inconceivable that the theory 
ought to be interpreted to obstruct all deliberate vo- 
litional effort, and to substitute for it a self-contem- 
plating passivity. To regard the organic theory of 
society as offering a definite solution of any social 
problem seems erroneous. The true purpose that it has 
served has been in helping to destroy the once preva- 
lent conception that individual liberty must a priori 
be a good thing, and needs not to be considered on its 
merits. 

5. Elaborate Analogies of Spencer, Schafile, 

^ The latter is the opinion expressed by Mr. M'Kechnie in his State 
and Individual, part i, chap. i. " This theory," he writes, '' is not only 
correct, but contains the germ of the whole truth of Political Philoso- 



THE LIBERTY OF THE IXDIVIDUAL 83 

etc.; the Personality of the State. By some 
authorities the organic theory has been supported not 
as a useful analogy, but as a literal truth. To establish 
this fact they have analyzed in great detail the indus- 
trial and political structure of society, and shown that 
it conforms to the general organic type, and is there- 
fore literally and actually an organism. Of such an- 
alysis, that offered by Herbert Spencer is the most 
familiar. Spencer,^ it is true, does not entirely identify 
the social organism with the living organism. Society, 
he says, is an organism, but " it is not comparable to 
any particular type of individual organism, animal or 
vegetable." The analogy that he institutes, however, is 
carried into such detail as to stop little short of identi- 
fication. The first point of resemblance is found in the 
fact that societies, like living bodies, begin as germs 
(small wandering hordes of people), and increase con- 
tinually in mass and in complexity of structure. In 
both cases this increase in mass is effected either by 
simple multiplication of the units or by union of groups. 
Thus the organic integration of plants of the lowest 
order, which increase into a larger form by "clustering" 
into one, is compared to the amalgamation of primitive 
tribes. Multiplication and fusion of units may, in both 
animal and social growths, proceed simultaneously. The 
progressive complexity of structure is shown in the 
development of society, as in the development of plants 
and animals, by constantdifferontiation of special organs 
for the performance of special functions. In a rudi- 
mentary animal organism the same ap])aratus acts in an 
imperfect way as stomach and mouth, or as stomach 

^ See Principles of Sociology, part ii. 



84 THE NATURE OF THE STATE 

and skin. Gradually each of these separate organs is 
evolved and restricted to its own function. An original 
spinal axis of an elementary character becomes sepa- 
rated into its vertebrated parts, the head differentiated 
from the backbone, and the brain from the skull. So 
in society, separate classes — kings, priests, medicine 
men — are differentiated from the original mass, and 
assigned to their peculiar activities. The division of 
labor in the society, as in the animal, makes it a living 
whole. The industrial division of occupation among 
weavers, iron-workers, food-growers, etc., corresponds 
to the independent functions of stomach, heart, and 
lungs. The original structures are found, on examina- 
tion, to closely resemble the bodily structures. Spencer 
speaks of a manufacturing district as " secreting " cer- 
tain goods ; a seaport town " discharges and absorbs " 
them, performing a duty like that of the pores of the 
skin. Society has its " sustaining system," or parts 
devoted to alimentation. These are the great produc- 
tive industries, — the agricultural areas, the " iron- 
secreting " districts, etc. There is also the distributing 
system, — the roads, railroads, and canals, which serve 
as the blood-vessels of the social body. The press, the 
telegraph, telephone, etc., serve as stimuli, by which 
the nerve centres are moved to action. Finally, there 
is in society, as in the living organism, the regulating 
system, — " nervo-motor " in the one, "governmental- 
military" in the other. These are evolved by the 
struggle for survival against the rapacity of other 
organisms. " The successive improvement of the organs 
of sense and motion have indirectly resulted from the 
antagonisms and competition of organisms with one 



THE LIBERTY OF THE INDIVIDUAL 85 

another." The wars between societies originate gov- 
ernmental structures, and are causes of all such im- 
provements in these structures as increase the efficiency 
of corporate action against environing societies. The 
special application of this last comparison lies in the 
argument advanced by Spencer that the govermental 
organ, like every other, should confine itself to the 
particular functions for which it has been evolved, — 
protection and defense, — and should abstain from 
wider action in the field of positive beneficence. 

As already said, Spencer does not completely identify 
the social organism with the living plant or animal. 
The chief difference is found in the fact that while the 
parts of an animal form a concrete whole, society is 
"discrete;" in other words, "while the living units 
composing the one are bound together in close contact, 
the living units composing the other are free and not 
in contact, and are more or less widely dispersed." 
Hence the political or social body is sensitive only in 
its units, whereas the animal organism has a " senso- 
rium" in which its sentient existence is centred. Even 
this distinction Spencer is unwilling to unduly em- 
phasize. The units of society, though not in physical 
contact, affect one another through the influence of 
language spoken or written ; there is thus a psycho- 
logical continuity where physical coherence is lacking. 

A still more complete presentation of the social 
organism is offered by the late Albert Schaffle, the dis- 
tinguished Austrian statesman and economist, in his 
" Structure and Life of the Social Body." Here the 
comparison of social with animal forms is carried to an 
extreme point, stopping little short of complete identi- 



86 THE NATURE OF THE STATE 

fication, though the author professes to be mindful of 
the differences existing between the two, and avoids 
the explicit use of the term organic. Schaffle speaks 
of the "morphology" and the "physiology" of society, 
the " social limbs of technique," etc. If the whole of 
his vast work is to be viewed as an analogy, it reaches 
the point where such elaborate comparison ceases to be 
either of interest or profit. Others of the modern Con- 
tinental writers — for instance, Gumplowitz, the Polish 
publicist, in his " Sociological Idea of the State " 
(1892) — flatly and absolutely hold that the organic 
nature of the state is to be considered not as an illus- 
tration but as a literal fact. Of a still more extreme 
character is the contention of several of the German 
theorists that the state is a person. The claim that the 
state, or, if one will, the government, is a person in a 
purely legal sense of the term is what no one will 
deny. The government being an owner of property, a 
collector of taxes, a borrower of money, etc., can un- 
doubtedly be clothed with an abstract personality. But 
the writers in question — Gierke, for example, in his 
"Fundamental Concepts of Public Law" — go beyond 
this. With them the personality of the state is not 
abstract but actual ; out of the " social side " of each 
individual composing the state is compounded a new 
person, a totality of purpose which is the true constitu- 
ent element of personality. Bluntschli even determines 
the sex, maintaining that the state is male and the 
church female.^ 

6. Criticism, This extreme theory of the personal- 

1 On tlie subject of the personality of the state consult also Jellinek, 
Allgemeine Staatslehre (1900). 



THE LIBERTY OF THE INDIVIDUAL 87 

ity of the state it is hardly necessary to criticise. It 
belongs to that class of abstractions which may mean 
much to the nation that originates them, but which 
seem to dissolve in passing through the prism of Anglo- 
Saxon literalism. The general organic theory merits, 
however, a special treatment.^ Interesting as is the 
parallel between the collective aspect of humanity and 
the life of a single organic unit, the differences between 
the two appear on impartial examination so great that 
the analogy cannot be looked on as a true guide to 
social policy, or a true expression of man's relations to 
his environment. The difference that Spencer masks 
under the cognate terms "concrete" and "discrete," is 
in reality of a fundamental character. In neither the 
physical nor the metaphysical sense of the terms is it 
true that the individual is literally a part of society. 
The existence of each human being is a fact apart. The 
" existence " of society is only an abstraction. Society 
has no single brain, no " social sensorium ; " it has no 
single physical life. This distinction is therefore more 
than a mere divergence of special qualities. It is es- 
sential and absolute, — it is the difference between 
" black " and " white," and between " yes " and " no." 
Even if we accept the analogy as only an analogy, it 
does not follow that it is always a j)roper guide for 
our social conduct. Too great an amalgamation of the 
individual and the state is as dangerous an ideal as a 
too great emancipation of the individual will. Individ- 
ual variation, individual " unlikeness," and, in a sense, 

1 For criticism of the org-anic tlieory see J. S. Mackenzie, Introduction 
to Social Philosophy, chap, iii, and W. W. Willoug-hby, The Nature of 
the State, chap. iii. 



88 THE NATURE OF THE STATE 

individual isolation of effort is as necessary for the 
welfare of mankind as collective activity and mutual 
support. The organic theory of society, deprived of its 
ingenious biological setting, presents only one phase of 
the truth, erring in one direction as much as extreme 
individualism has erred in the other. 

READINGS SUGGESTED 

Seeley, Sir J. R., Introduction to Political Science (1896), Lec- 
tures V, VI. 

M'Kecliuie, W. S., The State and the Individual (1896), chap. 
xxii. 

Giddings, F. H., Principles of Sociology (1899), bk. i, chap. ir. 

FURTHER AUTHORITIES 

Ritchie, D. G., Natural Rights (1895). 

Lieber, F., Civil Liberty (1852). 

Mill, J. S., Liberty (1859). 

Burgess, J. W., Political Science and Constitutional Law (1898), 

vol. i. 
Mackenzie, J. S., Introduction to Social Philosophy (2d edition, 

1895). 
Spencer, H., Principles of Sociology, vol. i, part ii (3d edition, 

1893). 
Schaffle, A., Bau und Leben des Sozialen Korpers (2d edition, 

1896). 
Jellinek, G., Das Recht des Modernen Staates (1900). 
Fichte, J. G., Science of Rights (translation, 1889). 
Woolsey, T., Political Science, vol. i (1878). 



CHAPTER Yl 

RELATION OF STATES TO OXE ANOTHER 

1, External Aspect of the State ; Regulation of its Conduct towards 
other States. 2. Evolution of International Relations : First, Sec- 
ond, and Third Periods, o. Scope and Content of International Law. 
4. Propriety of the Term. 5. International Arbitration. 

1. External Aspect of the State ; Regulation of 
its Conduct towards Other States. Viewed in a 
purely theoretical light, every state is an absolutely 
independent unit. Its sovereignty is unlimited, and- it 
renders political obedience to no outside authority ; 
it has no organized coercive relation with any other 
political body. Such theoretical isolation is the prime 
condition of its existence as a state, and its political 
independence is one of its essential attributes. This is 
what Hobbes meant in saying that, in regard to one 
another, separate states are to be viewed as in a " state 
of nature." Yet while this is true in a purely formal 
and legal sense, it is nevertheless the case that in actual 
fact different states stand in close contact with one 
another in a variety of ways. The mutual intercourse 
and communication of their citizens, trade, commerce, 
and various common interests, bring separate states into 
permanent relations demanding some sort of regulation. 
The fact that in the civilized world the citizens of one 
country very largely share in the thought, the art, and 
the literature of neighboring communities, runs coun- 
ter to the idea of political exclusiveness. The politi- 



90 THE NATUKE OF THE STATE 

cal as well as the social and cultural institutions of an}' 
modern state are largely affected by its contact with 
other states. Especially is this the case where the citi- 
zens of countries politically separate speak a common 
language, and where a kindred descent enables them 
to look back to the same history and traditions in the 
past. 

It is, therefore, easily understood that in the evolu- 
tion of their dealings with one another in relation to 
diplomacy and civic intercourse the action of modern 
states shows an increasing tendency to conform to a 
generally recognized usage. Even the conduct of war 
is adapting itself to a code of regulations, designed to 
mitigate as far as may be the suffering it involves, 
and to reduce to a minimum the injury it occasions 
to the commerce of the world. These rules and usages 
which regulate the peaceful intercourse of independent 
nations, and indicate a recognized method of warfare 
adopted by general consent, are not to be regarded as 
fixed and permanent. They are rather in a formative 
and imperfect stage of development. But the study 
of modern political institutions is not complete with- 
out an analysis of the nature of the bond thus created 
between different states, the extent of its obligation, 
and its especial significance for the future. Politi- 
cal science must take account not only of the internal 
organization of the state, but of its external relations 
in so far as they assume a regular and definite char- 
acter. 

Imperfect as they are, the " rules which determine 
the conduct of the general body of civilized states in 
their dealings with one another are termed Interna- 



RELATION OF STATES TO ONE ANOTHER 91 

tional Law." ^ The question at once arises whether the 
existence of such regulations can be harmonized with 
the sovereicrntv of the individual state. As we have 
understood it, the term " law " is properly to be re- 
stricted to the command, express or tacit, of a supreme 
legal authority ; we have seen that it is probably inex- 
pedient to use it in reference to customary observances 
not deliberately controllable by a political superior. In 
other words law has been restricted to mean the com- 
mand of the state, the two terms being correlative to 
one another. Such being the case, it is now to be asked 
whether the term international law is properly applied, 
and whether the sanction or compelling force behind 
its rules and regailations is sufficient to entitle it to be 
considered as really law. To undertake this inquiry it 
will be necessary first to pass very briefly in review 
the evolution of international relations, and the inter- 
pretation put upon them in political theory, and in the 
second place to indicate the scoj^e and extent of the 
rules of international law as now existing. By doing 
this, its true character, both as it is and as it may 
become, will be set in a clearer light. 

2. Evolution of International Relations : First, 
Second, and Third Periods. The evolution of in- 
ternational relations may be divided into three great 
stages. The first embraces the period from the origins 
of European civilization till the rise of the Roman Em- 
pire, the second extends from that date until the peace of 
Westphalia (1648), and the third period from the peace 

^ This is the definition given by Professor T. J. Lawrence (Interna- 
tional Laii\ chap. i). In attempting to define international law one meets 
at once the difficulty as to the extent of its sanction. 



92 THE NATURE OF THE STATE 

of Westphalia until the present day.^ During the first 
period we find no recognition of international obliga- 
tions as such. The claims and duties associated with 
kinship were recognized as a bond between communi- 
ties of a common descent and tongue. But between 
tribes and nations alien to one another there was no 
recognized system of peaceful intercourse or acknow- 
ledged principles of legitimate warfare. The tribes of 
the Israelites observed in the dealings with one another 
the bond of common birth ; they viewed themselves as 
forming a political system, each member of which had 
certain indefinite obligations towards the others, while 
all of them were disconnected from the outer world of 
Gentiles. In the same way the city states of ancient 
Greece, though jealously guarding their political auto- 
nomy, felt themselves bound by the ties of race to their 
fellow Greeks, a relation which found its expression 
in the Amphiktyonic Council, the federations of cities, 
and the observance of a rudimentary code of warfare. 
But towards the outside world — the barbarians, as the 
Greeks call them — no such obligations existed. In so 
far as the Greeks recognized a system of interstate re- 
lations, it was applicable only to the Hellenic people. 
The Romans, also, previous to their imperial aspirations 
of universal dominion, occupied the same theoretically 
isolated position. Rome, it is true, during the repub- 
lican period of her history, entered into treaties with 
the Samnites and other Italian tribes. They had also 
certain systematic observances which bear some re- 
semblance to a code of international conduct. But the 

^ Division given by Lawrence, International Law. See also Walker, 
History of the Law of Nations, Halleck, International Law, chap. i. 



RELATION OF STATES TO ONE ANOTHER 93 

Jus Fecials was merely a system of ceremonial acts 
which constituted the formalities thought necessary for 
a declaration of war, the conclusion of a treaty, etc. 
The Jus Gentium offers in its name a confusing an- 
alogy with international law. Its precise nature is a 
matter of some controversy, but it is safe to say that 
it was a code of regulations which applied not to the 
dealings of one nation with another, but to the dealings 
of citizens belonging to different nations. It took its 
name most probably from the fact that its rules were 
presumed to consist of principles of conduct common 
to the laws of all nations.^ But in none of these cases 
do we get a standing theory of international relations. 
Conduct towards outside nations might of course be 
influenced by motives of religion, of friendship, or of 
expediency, but we find nothing approaching to a sys- 
tematized view of the relative position occupied by 
political societies, each possessing towards the rest 
a definite status with standing rights and standing 
duties. 

In viewing the second period, that following the es- 
tablishment of the world empire of Rome, we find the 
outlook entirely changed. The Romans had made 
themselves masters of the known world and from the 
pride of their exalted position originated a new theory 
of political relations. The universal sovereignty of a 
single power became the dominant idea, the theoretical 
ground plan of political institutions. The idea of a com- 
mon superior holding the supremacy over all the polit- 

1 Yovxhejusgenlium, see Sir Henry Maine's Intern at io7ial Law; Hal- 
leck, International Law, chap. i. Walker cites various instances of the 
term jus gentium used in reference to international obligations and ap- 
proxinaating in its meaning to public international law. 



94 THE NATURE OF THE STATE 

ical subdivisions of the world appealed at once by its 
grandeur and its logical consistency. It endured in 
theory long after it had vanished in fact.^ Even as a 
fact, universal sovereignty, in territorial extent, if not 
in intensity, seemed at the time of Trajan (a. d. 98- 
117) to reach its realization. The " appeal to Caesar " 
represented everywhere the recourse to a final author- 
ity. The actuality thus lent to the conception was 
strengthened by the universality of the Christian reli- 
gion, which became after the conversion of Constan- 
tine (a. d. 312) the state religion of the imperial 
system. Even after the decline of the imperial power 
under the disruptive force of the barbarian invasions, 
the idea of universal dominion as a necessary basis of 
political life still survived. The restoration of the Ro- 
man Empire by Charlemagne (a. d. 800) served to give 
expression to this ideal. But in the succeeding centu- 
ries the conception of the nature of the political con- 
stitution of the universe underwent a vital change. 
The church presented itself not as a complementary, 
but as a rival power. It became necessary in theory 
to divide universal dominion between the secular and 
the spiritual sovereigns, whose conflicting pretensions 
helped to break down the conception of a single 
final authority. 2 The feudal tenure of land gradually 
brought into prominence the notion of territorial sove- 
reignty (political power operative not as over a people 

^ Dante, in his De Monorchia, arguing on the imperial side of the 
great controversy of the middle ages, undertakes to show the need of 
a single emperor, or sovereign, with power over all others. 

2 For the great mediaeval controversy between the empire and the 
papacy see Bryce, Holy Roman Empire, and Dunning, Political Theories 
Ancient and Mediceval. 



RELATION OF STATES TO ONE ANOTHER 95 

but over a certain definite territory), on the basis of 
which arose the modern theory of territorially inde- 
pendent states. Finally the religious schism of the 
Reformation destroyed the idea of the spiritual unity 
of mankind. The peace of Westphalia (a. d. 1648), 
which closed the thirty years' war in central Europe 
between the forces of Catholicism and Protestantism, 
may be taken as indicating the close of the era and the 
final disappearance of the theory of universal sove- 
reignty. 

During the third period — from 1648 until the pre- 
sent day — the theory of international relations has 
been reconstructed on a new basis of political independ- 
ence and territorial sovereignty. Modern international 
law is essentially the product of this period. At the 
opening of this era the destruction of the earlier sys- 
tem and the ideas which accompanied it seemed to 
have removed the basis of international dealings and 
to reduce the monarchies of Europe to the anarchy of 
the state of nature. The savagery of the European 
wars of the sixteenth and seventeenth centuries threw 
into a strong light the need for a reconstruction of the 
theory of the interrelation of political communities, 
now that the idea of a single common superior, either 
temporal or spiritual, was no longer tenable. It was 
this situation which called forth the writings of the 
great Dutch jurist Hugo Grotius, in which were laid the 
foundations of modern international law. Grotius and 
his followers ^ found the basis for their doctrine of in- 

^ The chief work of Grotius is his De jure Belli ac Pacts (1025). 
PufPendorf (a German, for some time secretary of state at Stockholm) 
published his De jure Naturae et Gentium in 1672 ; Bynkerschoek'a 
Quaestiones Juris Fublici appeared in 1737. 



96 THE NATUEE OF THE STATE 

ternational obligations in the reconstruction of the idea 
of a law of nature long ago assumed by the Stoic philo- 
sophers in reference to the relations of individual men. 
According to this doctrine there was supposed to exist 
in the very nature of things a code of moral obliga- 
tions of man to man, which did not depend for its 
validity upon human enactment. It existed antecedent 
to any system of government and law and could be dis- 
covered by the natural light of reason. " The princi- 
ples of natural law," says Grotius, " if you attend to 
them rightly, are in themselves patent and evident al- 
most in the same way as things which are perceived by 
the external senses." Such a theory of natural law is 
essentially fallacious, and, as has been already seen, it 
disintegrates upon a closer analysis.^ Nevertheless it 
served a useful purpose in offering a possible starting- 
point for constructing a system of mutual rights and 
duties existing between states without a common supe- 
rior. This theoretical assumption of a determinable 
and universally binding law of nature, though it affords, 
historically speaking, the starting-point of international 
law, is by no means its only source and basis as it now 
exists. The major part of it rests upon the successive 
treaties and conventions by which the great states of 
the world have adopted certain more or less defined 
principles to regulate their intercourse with one an- 
other in peace and war. At the beginning of the era 
stands the treaty of Westphalia, to which all the 
Continental sovereigns of Europe (except the Pope 
and the Sultan) were parties, and in which "the 

1 In reference to the history and criticism of the theory of a law of 
nature Professor Ritchie's Natural Rights may he consulted. 



RELATION OF STATES TO ONE ANOTHER 97 

representatives of civilized Europe united to formally 
proclaim the erection upon the ruins of world-sove- 
reignty of an international system of states, unequal 
indeed in power, but claiming each to be independent 
and each to exercise an exclusive jurisdiction within 
definite territorial limits." ^ Of the later treaties 
some are mainly concerned with the allotment of ter- 
ritory. Of this character is the treaty of Utrecht 
(1713), which closed the long war against Louis XIV, 
and the treaty of Paris (1763) at the end of the Seven 
Years' War. In others a fundamental point is the re- 
cognition of sovereignty, as in the treaty of Versailles 
(1783), recognizing the independence of the United 
States, and in the treaty of Paris (1856), in which the 
independence and integrity of the Ottoman Empire 
is guaranteed ^ and whereby it is admitted " into the 
public law and system of Europe." In other treaties 
principles of conduct are adopted for future guidance. 
Thus at the Peace of Utrecht four of the signatory 
powers accepted the principle that real property con- 
fiscated from the subjects of an enemy should be re- 
turned at the close of the war. The treaty of 1841^ in 
regard to the navigation of the Dardanelles and the 
Bosphorus assorts the territorial jurisdiction of a state 
over adjacent waters. The international law in respect 
to neutral commerce and maritime capture has been the 
subject of a long series of treaty clauses. The princi- 
ple that " free ships make free goods,"* adopted (from 

1 Walker, op, cit., part i, chap. ii. 

2 By great Britain, Austria, Fiance, Prussia, Russia, and Sardinia. 

^ Sig-ned by Austria, France, Great Britain, Prussia, Russia, and 
Turkey. See Alison, llistur;/ of Europe from the Fall of Napoleon, vol. 
vi, ch. xxxiv. ■* ISye Lawrence, op. cit. 



98 THE NATURE OF THE STATE 

older precedents) by the United States in the French 
treaties of 1778 and 1800, gradually gained a general 
assent and was recognized in 1856 in the Declaration 
of Paris, which accompanied the treaty already men- 
tioned. An equally important instance of principles 
of international conduct consolidated by treaty is seen 
in the treaty of Washington (1871), between the 
United States and Great Britain ; here the duty of neu- 
tral powers to use a proper diligence in preventing 
their territory from being used as a basis of operation 
and equipment by a belligerent is accepted as a bind- 
ing rule.^ 

In addition to deliberate assent to treaty provisions 
nations may express their adherence to rules of inter- 
national conduct in various other ways. Public docu- 
ments issued by a state in the form of proclamations or 
manifestoes to its subjects on the outbreak of a war, 
enjoining their observance of certain regulations in ref- 
erence to belligerents and neutrals are of this class. A 
further source of international law may be found in the 
decisions of prize courts, or special tribunals whose 
business it is to adjudicate on the legality of captures 
made at sea in time of war. Lastly may be cited the 
opinions expressed by the great jurists who have written 
on the subject. It goes without saying that the mere 
opinion of any individual writer has of itself no bind- 
ing force. But since all written laws and regulations 
must be submitted to the process of interpretation, the 
opinion of an eminent specialist as to the proper inter- 
pretation of a recognized formula is evidently of force, 
and it has always been customary to cite as testimony 

1 Text of treaty, art G. See Annual Register, 1S71. 



RELATION OF STATES TO ONE ANOTHER 99 

the opinions of international jurists. Kent in his " Com- 
mentaries " ^ states the point thus: "In cases where 
the principal jurists agree, the presumption will be verj 
great in favor of the solidity of their maxims ; and no 
civilized nation that does not arrogantly set all ordi^ 
nary law and justice at defiance will venture to disre- 
gard the uniform sense of the established writers on 
international law." 

3. Scope and Contents of International Lavr. 
Let us now consider very briefly the range of the sub- 
ject-matter of the international code that has grown up 
on this basis. It presumes as its starting-point a num- 
ber of separate, independent states, all of which are 
absolutely equal in rights. " Xo principle of law is 
more universally acknowledged," said Chief- Justice 
Marshall, '' than the perfect equality of nations. Russia 
and Geneva have equal rights. It results from this 
equality that no one can rightfully impose a rule on an- 
other. Each legislates for itself, but its legislation can 
operate on itself alone." Next to the establishment of 
this cardinal 2)roposition comes the discussion of the 
territorial limits of jurisdiction, the relation of the 
sovereign power of a state to the adjacent w^aters of 
its coast. AVith this is connected the question of the 
legitimate means of increasing territorial jurisdiction, 
and the validity of claims arising from conquest, ces- 
sion, original settlement, and so forth. Rules are also 
laid down in regard to the jurisdiction and responsibil- 
ity of a state in reference to its subjects while resident 
abroad. These with other questions of like charac- 
ter constitute the subject-matter of international law 

^ Commentaries, vol. i, p. 19. 



100 THE NATURE OF THE STATE 

as applied to nations at peace witli one another, — 
the " law of peace," as it is called. The larger part 
of the code, however, is occupied with the rules of war. 
Unfortunately international law is as yet unable to offer 
any binding system according to which disputes may 
be settled in a peaceful manner. It is therefore com- 
pelled to assume that controversies will .in the last 
resort be settled by force of arms. The best that it 
can do in this case is to prescribe certain regulations 
whereby the conduct of war may be as humane as pos- 
sible and may occasion the least possible injury to the 
property and commerce of non-combatant powers. For 
this purpose international law defines the legitimate 
agents and methods of war ; it prohibits, for example, 
the use of bullets which occasion needless suffering, the 
recourse to assassination, poisoning, etc. It indicates for 
the use of belligerents a system of communication with 
one another by flags of truce, passports, and safe con- 
ducts. What is still more important, international law 
contains an elaborate set of regulations in regard to the 
rights and obligations of neutral states in time of war ; 
as far as possible it permits the trade of neutral ships 
to and from the ports of belligerent powers to continue 
undisturbed. Only when the trade in question is with 
ports actually blockaded, or consists in a commerce 
of articles useful for purposes of war, does it become 
legitimate for a belligerent power to interfere with it. 
It is in particular the law of neutrality that has been 
extensively developed in the eighteenth and nineteenth 
centuries, and it now constitutes the most important 
part of international law. 

4. Propriety of the Term. Taken altogether, this 



KELATION OF STATES TO ONE ANOTHER 101 

systematized regulation of international dealings, both 
in peace and war, presents an imposing appearance, 
and the code of rules which are thus adopted bears a 
strong analogy to the internal or municipal regulation 
of any particular state. But it will be clear, from what 
has gone before, that there is a difference between the 
two of an important character. The observance of the 
municipal law is compulsory upon the individual citi- 
zen. If he attempts to violate it he is restrained, or at 
any rate punished after the fact by the physical force 
controlled by his government. But there is no such 
definite obligation upon the individual state to comply 
with the principles of international law. A state which 
undertakes to violate them may or may not meet with 
punishment ; the state upon whose rights (under inter- 
national law) another infringes may or may not resort 
to arms ; and even in the event of armed conflict the 
injured power may meet with defeat. Nor is there any 
single power, or group of powers, whose business it is 
to enforce these principles of international conduct. 
International law is devoid of an authoritative and 
explicit " sanction." 

It is on this ground that are based the criticisms of 
the applicability of the term " international law," and 
of the status and character of its rules, that have fre- 
quently been advanced. " I think, my Lords," Lord 
Salisbury once said to the House of Lords, " we are 
misled in this matter by the facility with which we use 
the phrase international law. International law has 
not any existence in the sense in which the term law 
is usually understood. It depends generally upon the 
prejudices of the writers of the text-books. It can be 



102 THE NATURE OF THE STATE 

enforced by no tribunal, and, therefore, to apply to it 
the phrase Law is to some extent misleading." The 
same objection is urged in detail by Austin (the leader 
of the English analytical school of jurists) in his " Lec- 
tures on Jurisprudence." Since, according to Austin, 
the essence of a law lies in its enforcement, the name 
" international law " is improper ; the rules in question 
belong to the general domain of what Austin calls 
" positive morality," or rules imposed by current opin- 
ion (as also are the " laws " of fashion and the " laws " 
of honor), but not coercively enforced.^ The regula- 
tions affecting the conduct of political states towards 
each other could only be termed "law" in the Austin- 
ian sense if there were in existence some superior power 
competent and willing to guarantee their enforcement. 
Such a power might be imagined as existing in the 
shape of a general federation or league of states pledged 
to the recognition of the international code and united 
to prohibit any breach of it. An arrangement of this 
sort, as soon as it became really valid and permanent, 
would in reality bring the associated nations into a 
single state. It might, therefore, be doubted whether 
even in this event the term " international law " would 
not still be a misnomer; for "nation" in this sense 
being a political and not an ethnological term, the 
union of the " nations " under a single law would con- 
stitute them a single state. 

As against the point of view adopted in such criti- 
cisms of the propriety of the term " international law," 
various arguments may be adduced.^ In the first place, 

^ Austin, Jurisprudence, Lecture V. 

2 See Jellinek, Rccht des Modernen Staates, pp. 302-307, 337-341. 



RELATION OF STATES TO ONE ANOTHER 103 

the objection urged by many writers ^ adopting a re- 
stricted connotation of the term " law " may also be 
applied here. We have seen that law in its strict sense 
is not applicable to a state of society in which life is 
regulated to a large extent by custom, and to which the 
idea of deliberate enactment is altogether alien. Nor 
is the term in its strict sense applicable to a commu- 
nity in which imperfect political organization or chronic 
anarchy renders the general obedience to regulative 
control spasmodic and uncertain. Many writers have 
therefore preferred to expand the sense of the term 
" law " in order to make its use extend to societies of 
this character, and recognize the existence of " law in 
the making," as well as of law. Viewed in this light, 
international law may be considered as truly law, al- 
though as yet only in an inchoative stage ; it becomes 
analogous, as Sir Frederick Pollock expresses it, " to 
those customs and observances in an imperfectly or- 
ganized society, which have not yet fully acquired the 
character of law but are on the way to become law." 

Even at the present stage of its development inter- 
national law is not so much devoid of a binding sanc- 
tion as might at first appear. Where its precepts are 
definite and their meaning obvious, the general pre- 
sumption of civilized opinion — a potent factor in the 
world politics of our day — is against any power acting 
in violation of them. A flagrant disregard of inter- 
national law would involve a decided loss of national 
prestige, and offer a perhaps tempting chance for inter- 
vention on the part of an outside power. The weak 
part of the system lies in the fact that, in the absence 

^ See Chapter IV, above. 



104 THE NATURE OF THE STATE 

of authoritative interpretation, it is possible for any 
power to put its own construction on the rules of inter- 
national law, and to profess to assent to their validity 
while, in the eyes of others, violating their provisions. 
To render complete a system of international regula- 
tion, there would be needed not only a physically 
coercive power to prevent armed conflict between state 
and state, but also a method for the proper adjustment 
of controversy. As our municipal law necessitates a 
set of courts for the settlement of private disputes, an 
international court, or group of courts, would be needed 
to replace the recourse to arms hitherto the final method 
of settling international quarrels. In other words, the 
realization of international law demands the establish- 
ment of compulsory international arbitration. 

5. International Arbitration. Arbitration, or the 
settlement of differences between independent states 
in accordance with the adjudication of a third party, 
has, even in the form of a voluntary recourse to such a 
decision, only assumed any considerable proportions in 
the last half-century ; of a compulsory system of arbi- 
tration we have as yet only the merest beginnings. It 
is of course true that there have always been examples 
of disputes settled by the mediation of a third party. 
During the mediaeval and early modern period, while 
the theory of a common superior still persisted, recourse 
was often had to the Pope as an arbiter between con- 
tending princes. But such arbitration, except in the 
case of the celebrated award by Pope Alexander VI, 
dividing the New World between Spain and Portugal, 
and in a few lesser instances, was not applied to ques- 
tions of great magnitude. In the seventeenth and 



RELATION OF STATES TO ONE ANOTHER 105 

eighteenth centuries international arbitration is scarcely 
found, but the circumstances of the nineteenth have 
especially favored the development of the principle. 
The increasing costliness of war, the dislocation that it 
occasions not only to the industrial life of the bellige- 
rents, but to that of all countries associated with them, 
the growing interdependence of general financial and 
commercial operations throughout the civilized world, 
put a strong premium on any method of settling quar- 
rels without actual war. It is true, as most writers on 
the subject point out, that as yet arbitration has not 
been applied to subjects of really vital importance. But 
there have already been instances of its use in cases 
in which, though neither national existence nor honor 
was at stake, pecuniary and territorial claims of great 
magnitude were involved. As between the United 
States and Great Britain arbitration has repeatedly 
been employed, especially for the rectification of bound- 
ary lines, as in 1827 in regard to the northeast bound- 
ary,^ and in 1846 for the boundaries on the Pacific 
coast. Still more celebrated is the successful arbitra- 
tion of the question of the American claim for damages 
on account of the devastations of the Alabama and 
other Southern cruisers, a matter which, by the treaty 
of Washington (1871), was referred to a special tri- 
bunal, and ended in the award of a compensation of 
$15,500,000 to the United States. Arbitration was 
also successfully employed in 1889 by the United 
States, Great Britain, and Germany in reference to 
Samoa. There have been in the nineteenth century over 

1 The award mafle in this case by tlie king- of the Netlierlands was 
rejected by the United States. 



106 THE NATURE OF THE STATE 

a hundred important cases of arbitration effected by- 
special tribunals or specially appointed umpires. 

A further stage of development is found in the 
attempt to constitute a permanent tribunal for the set- 
tling of international disputes and in the conclusion of 
treaties to effect a standing method of recourse to such 
a tribunal. After various proposals from important 
quarters in the closing years of the nineteenth century, 
a successful plan was put into operation by a conven- 
tion signed at the Hague by the Great Powers in con- 
nection with the Peace Conference of 1899. Under this 
agreement a permanent court of arbitration is estab- 
lished. It consists of a panel of distinguished jurists, of 
whom four are nominated by each signatory power, and 
from the total number of whom international disputants 
may select two each to act as arbitrators, the persons 
chosen themselves adding an umpire. The procedure 
to be adopted by the tribunal thus created is also pre- 
scribed. Although recourse to the tribunal at the Hague 
is not obligatory upon the signatory powers, it neverthe- 
less offers standing facilities for peaceful settlement 
very difficult to bring into being during the strained 
relations occasioned by acute international controversy. 

A second Peace Conference was held at the Hague 
in 1907 and was attended by representatives of forty- 
five states. It was chiefly concerned with the discus- 
sion and codification of certain portions of the law of 
war, but undertook also the revision of certain details 
of the convention of 1899 in regard to the settlement 
of international disputes. A third Conference is to 
meet in 1917. 



RELATION OF STATES TO OXE ANOTHER 107 

The work thus accomplished has been further sup- 
plemented by special treaties among the powers which 
thereby pledge themselves to adopt a settlement by 
arbitration where possible. According to the Interna- 
tional Peace Bureau of Berne, one hundred and thirty- 
three treaties of arbitration were concluded during the 
ten years following the first Peace Conference. In 
nearly all cases the agreement to submit to arbitration 
matters of controversy that may arise between two 
states is made with certain reservations. Questions 
which involve the independence, national honor, or 
vital interests of a state are excluded from the opera- 
tion of arbitration. Thus it is a condition of the Ano^lo- 
French treaty of 1904, and of those identical with it. 
that " neither the vital interests nor the independence' 
nor honor of the two contracting states, nor the interests 
of any state other than the two contracting states shall 
be involved." Such a pro\'iso, unavoidable though it 
has been in the present state of public opinion, seriously 
impairs the theoretical completeness of the arrangement, 
since each state must remain the judge of its own vital 
interests and may therefore at any time refuse to ad- 
mit the applicability of arbitration. A few treaties 
made by lesser states, as notably those concluded by 
Denmark with Italy, Holland, and Portugal respectively, 
provide for the submission of controversies of every 
character to a court of arbitration. 

Within the limits indicated above, treaties of five 
years' duration for references of disputes to the Hague 
tribunal have been made, in identical terms, by Great 
Britain with France, Italy, Spain, and Germany. These 



108 THE NATURE OF THE STATE 

treaties provide that " differences of a judicial order or 
relative to the interpretation of existing treaties be- 
tween the two contracting parties which may arise and 
which it may not have been possible to settle by diplo- 
macy, shall be submitted to the permanent court estab- 
lished by the convention of July 29, 1899, at the Hague." 
In the same way the United States had by 1910 con- 
cluded limited arbitration treaties with twenty-four 
powers, among which were Great Britain, Japan, Grer- 
many, France, Austria, and Italy » The treaty made 
between the United States and Great Britain in 1908, 
and duly ratified, pledged those two states to refer to 
the Hague Court any controversies which could not be 
settled by means of diplomacy, provided that the issues 
" did not affect the vital interests, the independence, or 
the honor of the two contracting states." 

In 1911 the attempt was made to carry still further 
the application of arbitration in disputes between Great 
Britain and the United States. A treaty was signed 
(August 3, 1911) by the plenipotentiaries of the two 
countries which was to submit practically each and 
every dispute to a court of arbitration. The first 
article of the treaty explained its scope as follows : 
"All differences hereafter arising between the high con- 
tracting parties which it has not been possible to adjust 
by diplomacy, relating to international matters in which 
the high contracting parties are concerned by virtue 
of a claim of right made by one against the other 
under treaty or otherwise, and which are justiciable in 
their nature by reason of being susceptible of decision 
by the application of the principles of law and equity, 



RELATION OF STATES TO ONE ANOTHER 109 

shall be submitted to the Permanent Court of Arbitra- 
tion established at the Hague by the convention of 
Oct. 18, 1907, or to some other arbitral tribunal as 
may be decided in each case by special agreement.'* 
The treaty also proposed to institute a joint high com- 
mission of enquiry for the *• impartial and conscientious 
investigation," though not of course for the decision, 
of international controversies. By the terms of the 
agreement the treaty was to remain in force until ter- 
minated by twenty-four months' notice given by either 
contracting state. The attempt to obtain the ratifica- 
tion of the United States Senate for this treaty, and 
for a similar treaty negotiated with France, raised the 
question of the constitutional rights and obligations of 
the Senate and the ratification of the treaties in their 
original form proved impossible. 

In the light of these recent developments the present 
position of international law and international arbitra- 
tion may be considered as highly encouraging. There 
is undoubtedly in all civilized countries a large and a 
growing force of public opinion against war which 
makes strongly in favor of a more and more definite 
establishment of an international code with properly 
constituted tribunals to pronounce upon its observance. 
In many quarters, it is true, there is a lingering feeling 
that war must remain as the "natural " and honorable 
settlement of controversy. Baronial war and the pri- 
vate duel died hard, and undoubtedly national war will 
die harder still. Sir Robert Finlay, attorney-general 
of Great Britain (1904), has recently written that 
" there are some questions which no country will con- 



109a THE NATURE OF THE STATE 

sent to leave to the judgment of any court or arbitra- 
tion ; every nation must be the guardian of its own 
honor." It is not easy to see why the same reasoning 
would not leave the individual citizen as the guardian 
of his own honor and insist on the retention of the duel 
as the proper method of settling private quarrels. The 
development of international solidarity is slow, but 
it may fairly be supposed that it will be continuous. 
From the courtesies of international custom we may 
pass to the indefinitely binding code and thence into 
something approximating to an international govern- 
ment and international state. Undoubtedly the expe- 
rience of the world in the creation of such huge politi- 
cal units as the United States, Canada, Germany, and 
Australia by the process of federation may aid in cre- 
ating a still more imposing structure in the "Parlia- 
ment of man and federation of the World." 

READINGS SUGGESTED 

Lawrence, T. J., Principles of International Law (1898), part i, 

chaps, i-v. 
Reinsch, P. S., World Politics (1900), chap. i. 
Machiavelli, N., The Prince (1513). 

FURTHER AUTHORITIES 

Walker, T. A., History of the Law of Nations, vol. i (1899). 

Halleck, H. W., International Law (1861). 

Maine, Sir H., International Law (4th edition, 1879). 

Bryce, J., Holy Roman Empire (8th edition, 1883). 

Dunning, W. A., History of Political Theories Ancient and Me- 

diseval (1902). 
Grotius, De Jure Belli ac Pacis (1625). 
Ritchie, D, G., Natural Rights (1895). 



EELATION OF STATES TO OXE ANOTHER 109& 

Austin, J., Lectures on Jurisprudence (4th edition, 1879). 
Jellinek, G., Das Recht des I\Iodernen Staates (1900). 
Dyer, L., Macliiavelli and the Modern State (1904). 
Woolsey, T., America's Foreign Policy (1898). 



i 



CHAPTER YII 

THE FORM OF THE STATE 

1. The Classification of States according' to their Form ; Aristotle's 
Divisions. — 2. Later Classifications ; Montesquieu, Rousseau, Blunt- 
schli, etc. — 3. Practical Classification of Existing- States. — 4. The 
Constitution ; Written and Unwritten Constitutions. — 5. Origin of 
Written Constitutions. — 6. The Distinction between States with 
Written and those with Unwritten Constitutions an Illusory Basis 
of Division. — 7. Scope of the Constitution. — 8. Amendment. 

1. The Classification of States according to 
their Form ; Aristotle's Divisions. Although all 
states must possess the essential requisites of territory, 
population, unity, and sovereign organization, they nev- 
ertheless differ widely in respect to the extent of their 
territory, the number of their population, and the pecu- 
liar nature of their organization. It is natural, therefore, 
to attempt to group them under some system of or- 
derly classification ; indeed, from the time of Aristotle 
onwards, almost all writers on Political Science have 
indicated some such classification. To subdivide states 
according to the extent of their territory, for instance, 
into classes each containing so many thousand square 
miles, would obviously be of very little significance ; to 
divide them according to population would be equally 
easy and valueless. The evident basis of classifica- 
tion is that of the organization of the state ; in other 
words, states are divided according to the structure 
of their governments. Some writers have held that we 
ought not to speak of a classification of states, since 



THE FORM OF THE STATE 111 

all are identical in their essential attributes. They pre- 
fer to classify instead the different " forms of govern- 
ment " seen in the state. The objection does not seem 
well taken. The differences in structure of government 
constitute the basis of classification, but we may on 
that basis either speak of the various " forms of gov- 
ernment " or " forms of the state." ^ 

The starting-point for all later discussion is found 
in the celebrated classification given by Aristotle in 
his " Politics." He divides the forms of government ac- 
cording to the number of persons in whom the con- 
trolling power is vested. Where the power is vested 
in a single person the government is a monarchy. 
Power vested in the hands of a few constitutes an 
aristocracy. Where the general body of the citizens 
rule, we have a polity. Tims far the classification had 
already been indicated by Herodotus, but Aristotle 
proceeds further in distinguishing between what he 
calls the "normal " and the "perverted " forms of the 
state. The normal states are those which aim at the 
good of the community as a whole ; the perverted forms 
are those which exist for the benefit of the ruler or the 
ruling class. The terms mentioned above are reserved 
for the first class; thus a monarchy is a government 
by a king for the good of the whole community, while 
an aristocracy or a polity is a government by the en- 
lightened few or by the citizens at large for the same 
end. Of the perverted forms a tyranny means the gov- 

1 " It need not be said tliat there can be no such thing- as a classifi- 
cation of states. In essence they are all alike, — each and all being 
disting-uished by tlie same sovereign attributes." W. W. Willoughby, 
The Nature of the State, chap. xiii. 



112 THE NATURE OF THE STATE 

ernment by a tyrant for his own ends, an oligarchy the 
government of the minority in their own interest, while 
a democracy signifies the selfish government of the 
*'mob." It is to be observed that in translating Aris- 
totle's terminology literally, the word democracy is 
shifted out of its modern meaning and becomes a term 
of opprobrium; some writers have therefore preferred 
to avoid a literal translation and to use " democracy " 
for the normal or beneficent form, and to substitute 
" ochlocracy" to mean mob-rule. 

The classification thus offered was intended by Aris- 
totle to bear a peculiar significance in that it typified 
not only the divisions of governments, but also indicated 
a series of forms, representing what might be considered 
the natural evolution of government. An original king- 
ship was presumed to change into an aristocracy and 
then through successive stages of oligarchy and tyranny 
into democracy. " The first governments," says Aristotle,^ 
*' were kingships, probably for this reason, because of 
old when cities were small, men of eminent virtue were 
few. They were made kings because they were bene- 
factors, and benefits can only be bestowed by good men. 
But when many persons equal in merit arose, no longer 
enduring the preeminence of one, they desired to have 
a commonwealth and set up a constitution. The ruling 
class soon deteriorated and enriched themselves out of 
the public treasury ; riches became the path to honour, 
and so oligarchies naturally grew up. These passed into 
tyrannies, and tyrannies into democracies : for love 
of gain in the ruling classes was always tending to 
diminish their number, and so to strengthen the masses, 

1 Aristotle, Politics, ii, chap. xv. 



THE FORM OF THE STATE 113 

who in the end set upon their masters and established 
democracies." 

Some writers in their analysis of the Aristotelian 
classification have put forward as the "natural" order of 
succession, — monarchy, tyranny, aristocracy, oligarchy, 
polity, and lastly democracy. The last in its turn may 
again change into monarchy and hence form a recur- 
ring cycle. ^ The process may be explained in detail 
thus : — 

Starting for instance at a given point in the cycle, 
we find a government in existence as a hereditary 
monarchy. With the degeneration of the character and 
aims of the successive monarchs, it passes into a tyranny, 
and is no longer directed towards the public good. The 
united efforts of the more powerful magnates of the 
community overthrow the monarch and set up an aris- 
tocratic government. This again degenerates, loses the 
public spirit which at first inspired it, and lapses into 
an oligarchy. Against this regime the citizens as a 
whole break into successful revolt and establish a 
" polity," or in modern terminology a democracy. Pushed 
to an extreme the democracy is converted into the op- 
pression of the rich by the masses, and thus becomes 
an ochlocracy (Aristotle's democracy). The intolerable 
confusion that results is brought to an end by the 
emergence of an all-powerful warrior-statesman who 
establishes himself as a king. Thus the cycle has run 
its course and begins again. 

^ This is the interpretation g-iven to Aristotle's theory by Wood- 
row Wilson {The State, chap, xiii, §§ ll>0r)-];)97). It is interesting- in 
this connection to consider Plato's discussion of the same subject, and 
Aristotle's criticism of Plato's view. See Plato, Republic, viii, § 545 ; 
and Aristotle, Politics, v, chap. xii. 



114 THE NATURE OF THE STATE 

The theory of political change laid down by Aris- 
totle appears, to a large degree, corroborated by the 
history of the Greek city states in the centuries pre- 
ceding the Peloponnesian War ; ^ indeed it was as an 
interpretation of their recurrent experience that Aris- 
totle, who was essentially an inductive and practical 
writer, offered this view of political permutations. 
Even in recent history examples are found of a more 
or less complete political progression of this sort. The 
French despotic monarchy of the eighteenth century 
was overthrown by the revolutionary movement (1789- 
92), which in its inception was largely under the 
guidance of the enlightened minority, and whose initial 
stages might therefore be looked upon as the overthrow 
of despotism by aristocracy.^ In the second phase of 
the revolution the aristocracy, as represented by the 
property-holding voters of the constitution of 1791 
(an oligarchy, in the minds of the Jacobin extremists), 
were overthrown, and the republic established, resting 
theoretically on universal suffrage and complete demo- 
cracy. The turbulent anarchy into which this demo- 
cratic regime degenerated (1793-99) was brought to 
an end by the emergence of a military monarch in the 
person of Napoleon Bonaparte. The links of the pro- 
gression are not precisely complete, but yet offer an 
analogy in some degree corresponding to the Aris- 
totelian cycle. The last-mentioned phase, the suppres- 
sion of anarchic disorder by the establishment of a 

^ Aji able analysis of the origin, development, and decay of tlie Greek 
city state is given by Ward Fowler, The City-State. 

^ The fact that the constitution of 1791 conferred the suffrage only 
on the property-holders lends color to this view. See Aulard, Histoire 
Politique de la Revolution Fran^aise. 



THE FORM OF THE STATE 115 

military autocracy, is one that has shown itself specially 
liable to recur. Yet when all is said, it cannot be 
argued that the Aristotelian cycle is to be looked upon 
as a necessary or even as a normal course of political 
change. Even Aristotle, who regarded it as normal, 
shows by his discussion ^ of the means of preventing 
revolutions that he did not consider it as inevitable. 
Least of all does it hold true of the condition of the 
modern political state. Nor is the classification of states 
into monarchies, aristocracies, and democracies to be 
looked upon as a satisfactory and sufficient division as 
applied to the modern world. In the first place, the 
terms monarchy and democracy open the way at once 
to great confusion. If a democracy means, as Aristotle's 
polity does, a system in which the political power lies 
in the mass of the people. Great Britain is to be classed 
as such, and falls into the same category as the United 
States, notwithstanding the obvious formal difference 
between these two governments. If, on the other hand, 
having regard to the existence of a titular sovereign, 
Great Britain is classed as a monarchy, it falls into 
the same class of government as Russia or Persia, an 
absurdity equally glaring. It is thus seen that the Aris- 
totelian division offers no adequate treatment of consti- 
tutional or limited monarchies, which are nevertheless 
as prominent as any existing form of government. The 
classification is inadequate, too, in other ways. It fails 
to take account of the difference between a federal and 
a non-federal or unitary government, — a distinction 
which, as we shall presently see, is of the greatest im- 
portance in connection with modern states. Nor does 

1 Politics, bk. V. 



116 THE NATURE OF THE STATE 

it make any distinction between governments accord- 
ing to the differences of the constitutional relation of 
legislature and executive. This also, as we shall see, is 
of the greatest importance. 

2. Later Classifications; Montesquieu, Rous- 
seau, Bluntschli, etc. Imperfect, however, as the 
Aristotelian formula is, it was nevertheless accepted 
as one of the cardinal tenets of political science. Not 
until quite modern times do we find it subject to seri- 
ous modification or expansion. Montesquieu, whose 
" Esprit des Lois " (1748) will fall under considera- 
tion in the succeeding chapter, proposed a division into 
republican, monarchial, and despotic governments. Ee- 
publican government was that " in which the people 
as a body or even a part of the people has the sove- 
reign power ; monarchial, that in which a single per- 
son governs, hiit only hy fixed and established laws ; 
whereas in despotic government a single person with- 
out any law or rule, conducts everything according to 
his will and caprice." ^ Rousseau offers a division of 
governments into monarchies, aristocracies, and demo- 
cracies, subdividing aristocracies into natural, elective, 
and hereditary. He admits also the existence of mixed 
forms of government, as in the anarchical kingdom 
of Poland. Many other writers of the eighteenth and 
earlier nineteenth centuries offer variations of the 
classification of Aristotle, all of which, however, are 
open to the same objection of inadequacy as applied to 
the complex organization of modern states. Bluntschli 
presents a unique addition to the list of governments 
in the shape of theocracy, a normal form to which there 

1 Esprit des Lois, bk. ii, chap. i. 



THE FORM OF THE STATE 117 

corresponds a perverted form, " idolocracy." The former 
name is applied to states " in which no human author- 
ity has been recognized, in which the supreme power 
has been attributed either to God, or to a God or to 
some other superhuman being, or to an Idea. The men 
who exercise rule are not regarded as its possessors, 
but as the servants and vice-gerents of an unseen ruler. 
Its perversion may be called Idolocracy." Such a 
classification seems quite fallacious. For even grant- 
ing the validity of this fourth class, it lies crosswise 
of the other three, and is not exclusive of them. "We 
might have a theocracy that had the form of a mon- 
archy, an aristocracy, or a democracy. Other writers 
have attempted more elaborate methods of division, 
which are intended to account for all the various his- 
torical forms of the state. Of this nature is the classi- 
fication of Von Mohl (a German publicist of the earlier 
nineteenth century) ; he distinguishes patriarchal, theo- 
cratic, despotic, classic, feudal, and constitutional states. 
Very little examination is needed to see that such 
classes overlap each other in all directions ; indeed 
attempts of this sort to effect a division that is at once 
logical and chronological, run the danger of drifting 
into mere description. 

More modern writers ^ undertake a division of states 
which shall take account not merely of the general 
location of supreme legal power, but also of the salient 
features of the organization and structure of the gov- 
ernment. Indeed, while accepting Aristotle's division 
as true as far as it extends, it seems necessary in classi- 

^ See Gareis, Allgemeines Staatsrecht ; and Jcllinek, Allgemeine 
Staatslehre, chap. xx. 



118 THE NATURE OF THE STATE 

fying the states of the modern world to take account 
of certain especial features of organization the exist- 
ence of which introduces a fundamental difference be- 
tween forms of government. Chief amongst these is 
the distinction between unitary and federal govern- 
ments. In a unitary government the organs of local 
authority (provincial and county bodies, etc.) exist by 
virtue of an express creation, or by tacit recognition 
from the central government. The latter has power, le- 
gally, to terminate their existence or alter their form. 
The governments of France, Great Britain, and Italy 
are unitary. The governments of the United States and 
Germany, on the other hand, are federal. Here both 
the central and local authorities derive their power 
from an antecedent source, and neither is legally com- 
petent to destroy the other. A further distinction is 
found in the difference between what is called parlia- 
mentary, responsible, or cabinet government, and the 
form known as non-responsible or non-parliamentary. 
In the former the executive is virtually appointed by, 
and holds office during the pleasure of, the legislative 
body. This is the case in England and in France. In 
the latter the executive is not appointed by the legis- 
lature, and cannot be dismissed by it. Of this char- 
acter is the government of the United States, of the 
separate states of the Union, Cuba, etc. 

3. Practical Classification of Existing States. 
In attempting a somewhat elaborate practical classifi- 
cation of states, it seems advisable to make no attempt 
to include all the historic forms which have appeared 
in the evolution of the state (city states, feudal mon- 
archies, etc.), but to confine ourselves to actually exist- 



THE FOKM OF THE STATE 119 

ing types. It is better also to leave on one side those 
communities of the modern world, such as China, whose 
imperfect organization hardly admits of their being 
called states in the strict sense. In dealing with his- 
toric and imperfect forms of the state, no more accurate 
classification than the original category of Aristotle 
can be applied without degenerating into mere descrip- 
tion. It is well, therefore, to take the primary classifi- 
cation as of general validity, and to supplement it with 
a more exact category of modern states. In the light 
of what has been said, the division shown in the table 
on the following page may be suggested. 

The basis of division in this plan proceeds in the 
first place from the fundamental distinction between 
despotic and democratic states. In the former the su- 
preme legal power is in the hands of one person ; in a 
democratic state it is in the hands of the majority of 
the people, or their representatives. This seems the 
most fundamental of all distinctions ; it corresponds to 
the complete contrast offered by the legal organization 
of such states as Russia, Turkey, and Persia on the one 
hand, and those of France, the United Kingdom, and the 
United States on the other. It seems unfortunate to 
use the word despotic to indicate the former class, 
since in the legal sense every state may be said to be 
despotic. But the term monarchical, or even tyrannical, 
only leads to worse confusion, and read^^-made termi- 
nology is seldom felicitous. As a second grouping we 
have the subdivision of democracies into limited mon- 
archies (governments in which the nominal headship 
of a personal sovereign is preserved) and republics, in 
which the chief executive, both titular and real, is the 



120 



THE NATURE OF THE STATE 



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THE FORM OF THE STATE 121 

appointee of the people. For evident reasons there is 
no similar division of despotic monarchies. The further 
divisions between unitary and federal governments, 
and between responsible and non-responsible forms, 
have already been explained. There can evidently be 
no federal or responsible subdivisions under the des- 
potic group. 

4. The Constitution; Written and Unwritten 
Constitutions. The form of any particular state is 
called its constitution. In America it is natural to think 
of the word " constitution " as indicating a written doc- 
ument. But in the wider sense of the terra it refers 
to the fixed fundamental law of any state, wdiether 
expressed in a written constitution or otherwise. The 
following definition is offered by Professor Woolsey : ^ 
"The collection of principles according to which the 
powers of the government, the rights of the governed, 
and the relations between the two are adjusted is called 
a constitution." Compare the definition of the distin- 
guished English jurist, Mr. E. Dicey : " All rules 
which directly or indirectly affect the distribution or the 
exercise of the sovereign power in the state." Of these 
principles or rules, some may exist in written form in a 
constitutional document, but others may be of equally 
binding force though resting for their sanction only on 
long-standing custom. This is seen particular!}^ in look- 
inor at the constitution of En^i^land. Some of the most 
important parts of it are matters, not of statutory en- 
actment, but of customary usage ; and this customary 
usage is to be regarded sometimes as having the aspect 
of law enforceable by the courts, sometimes merely 

1 Political Science, vol. i. 



122 THE NATURE OF THE STATE 

as an understandiug or convention, whose observance 
is only guaranteed by the force of tradition and of 
public opinion. The cabinet system, for example, by 
which the ministers of the executive are selected with 
the approval of the majority of the House of Commons 
from among the members of the two houses of Parlia- 
ment representing a particular political party or group 
of parties, is the central feature in the practical oper- 
ation of the British government ; it is purely a matter 
of convention, not of law. 

Hungary is another country which offers an example 
of what is commonly called an unwritten constitution. 
The relations of Hungary to Austria, together with 
which it forms the dual monarchy of Austria-Hungary, 
are indeed based upon a fundamental statute (December, 
1867) passed in like terms by the parliaments of the 
two countries, and bearing some analogy to a written 
constitution. But there is no single constitutional docu- 
ment regulating, or professing to regulate, the internal 
government of the Kingdom of Hungary. As in the 
case of England, to whose constitutional evolution that 
of Hungary offers an interesting parallel, the consti- 
tution rests partly on immemorial custom, partl}^ on a 
series of decrees and statutes,^ partly on conventional 
usages. The parliament of Hungary and the county 
assemblies have existed for many centuries, and their 

1 Of these the principal are: Golden Bull of Andreas II (1222) ; 
the Pacification of Vienna (1606) ; Prag-raatic Sanction of Charles III 
(1723); Constitutional Laws of 1791, 1844, 1848, and 1867. From the 
original Contract of Blood (no longer extant but dating from the first 
conquest of the country and securing the rights of the nobles) till the 
present time about fifty constitutional statutes may be enumerated. See 
Dareste, F. R., Les Constitutions Modernes (2d edition, 1891), vol. i. 



THE FORM OF THE STATE 123 

existence is not based on a fundamental written law. 
Of the decrees referred to, tlie Golden Bull of Andreas II 
(a. d. 1222) — restricting the power of the king in favor 
of the privileges of the barons, and calling for annual 
parliaments — suggests the Magna Carta of King John, 
It has been supplemented by numerous other laws, the 
most important provisions of which were definitely 
codified in statutes of 1848 and 1867. Any of the pro- 
visions of these can legally be abolished by ordinary 
statutes. It would seem then that the word constitution, 
if it is to include the organization of such countries as 
England and Hungary, must be used in a wider accep- 
tation than its usual American signification. To the 
examples of Great Britain and Hungary there might 
of course be added the despotic states, such as Eussia 
and Turkey, whose government from the nature of the 
case is not based upon a written constitution. Theoret- 
ically one could conceive of a despotic monarchy rest- 
ing on a written constitution ; one might imagine the 
social contract as enunciated by Hobbes, operating in 
the form of a written constitution, under which all the 
subjects surrendered their power to a despotic king. 
But inasmuch as, in this instance, the power of the 
king would extend to the alteration or abrogation of 
the constitution itself, the latter wouUl be entirely 
nugatory and the king's real tenure of power would 
rest in reality on the continuance of the custom of 
submission. 

5. Origin of Written Constitutions. But among 
the organized states of the civilized world the number 
of those which have no written constitution professing 
to regulate their internal structure is only a very small 



124 THE NATURE OF THE STATE 

minority. Within the last century and a half most of 
the great states have adopted written constitutions. 
The American colonies, in converting themselves into 
states, led the way. Written constitutions were adopted 
in the year 1776 by New Hampshire, Virginia, South 
Carolina, New Jersey, Delaware, Pennsylvania, Mary- 
land, and North Carolina ; in the following year by 
Georgia and New York ; and by Massachusetts in 1780. 
Connecticut and Rhode Island converted their royal 
charters into constitutions by putting the name of the 
people in the place of that of the king. France, at 
the commencement of the Revolution, framed and 
adopted (^1791) a written constitution which, although 
soon set aside in favor of others equally ephemeral 
(1793, 1795, 1799), established a historic precedent. 
Each of the successive French governments of the 
nineteenth century has adopted a written constitution, 
— the Bourbon government of the Restoration prefer- 
ring, however, to avoid the word " constitution " and to 
substitute for it the term " charter," which seemed to 
have less flavor of popular sovereignty. The present 
government in France, — the third republic, — though 
it has no single document called a constitution, has, 
nevertheless, a code of " constitutional laws," with a 
special method of revision. In the Napoleonic era a 
number of written constitutions were issued under 
French influence to the tributary Italian states. Dur- 
ing the same time written constitutions were declared 
in Spain both by the Bonapartists, recognizing King 
Joseph (1808), and by the partisans of the Bourbon 
Ferdinand VII (1812). Neither of these proved per- 
manent ; but Spain is at present under a written con- 



THE FORM OF THE STATE 125 

stitution presented by the government to a convention, 
which ratified it in 1876. During the European rising 
against Napoleon (1813, 1814) written constitutions 
were promised by Prussia and by several of the states 
of Germany ; after the war they were actually granted 
by Bavaria (1818) and by Wiirttemberg (1819). The 
great revolution of 1848 precipitated a shower of writ- 
ten constitutions all over central Europe. Though 
nearly all of them were canceled in the ensuing mon- 
archial reaction, that of Sardinia (the " Fundamental 
Statute " of 1848) has remained in revised form as the 
constitution of the present kingdom of Italy. The king 
of Prussia issued in 1850 a constitution prepared by 
the crown and accepted by a legislative body of a reac- 
tionary character, which has since, in theory at least, 
served as the basis of the Prussian government. Aus- 
tria, in 1867 (defeated in the war with Prussia and 
Italy, and fearing a disintegration of her heteroge- 
neous provinces), adopted a set of fundamental laws 
closely analogous to a written constitution. At the 
present time, then, with the exception of England, 
Hungary, and the absolute monarchies, the chief Euro- 
pean states have written constitutions. The same is 
true of the republics of Central and South America, 
all of which have written constitutions, serving at any 
rate as the nominal basis of their government. 

The precedent having been once successfully set in 
America in the eighteenth century, its extension has 
been largely a matter of imitation and adaptation. It 
is interesting, however, to observe the manner in which 
the institution of written constitutions came about in 
the United States. In a certain sense the written con- 



126 THE NATUKE OF THE STATE 

stitutions of the American states may be looked upon 
as evolved out of the charters granted by the sove- 
reigns of England to trading companies, and conferring 
upon them a corporate personality, and, in most in- 
stances, commercial privileges or monopolies. These 
charters themselves were closely analogous to the medi- 
aeval charters of privileges given to towns, merchant 
guilds, or religious orders. Edward lY, in 1463, 
granted a charter to the merchant adventurers trading 
with Flanders. Queen Elizabeth conferred a charter 
(1579) upon the Eastland company trading in the 
Baltic, and granted another in 1599 to the East India 
Company. Under James I (1609) a charter was granted 
to the " Treasurer and Company of Adventurers and 
Planters of the city of London for the first ^ colony in 
Virginia." Most important of all is the charter issued 
by Charles I (1629) to the " Governor and Company 
of Massachusetts Bay." The Massachusetts charter 
not only incorporates a " trading company with power 
to implead or to be impleaded, etc," but also makes 
provision for a frame of government consisting of a 
governor, deputy-governor, and eighteen assistants, 
and calls for the holding of a "greate and general 
courte " of the company four times a year. The emi- 
gration of the company as an entirety to America (a 
proceeding not contemplated by the government at the 
granting of the charter) converted their corporation 
into a political rather than a commercial body. Though 
this charter was canceled in 1684, it was replaced by 

1 This is the second Virg-inia charter. The first was granted in 1006 
The word " first " is used to distinguish them from the Plymouth 
Company. See B. Poore, Charters and Constitutions, vol. ii. 



THE FORM OF THE STATE . 127 

another one (1691) whicli conceded less independence, 
indeed, to the colony, but constituted a more purely 
political instrument. Similar charters with privileges 
of government were granted to various other American 
colonies during the period of settlement, though many 
of them were withdrawn later. At the time of the 
Revolution colonial charters existed in Massachusetts, 
Connecticut, and Ehode Island. 

But although it is necessary to recognize the import- 
ant part played by trading charters in the evolution 
of written constitutions, there are other contributory 
factors which must not be left out of sight. The insti- 
tution of compacts or joint agreements for self-govern- 
ment among the people themselves played an important 
part. Of these compacts or " plantation covenants," 
the history of the settlement of New England in the 
seventeenth century offers several examples. They 
were occasioned in part by the isolation in which the 
colonists found themselves, being cut off from the direct 
action of the sovereign government to which they ac- 
knowledged allegiance ; they were also inspired by the 
ideas on religious organization and government domi- 
nant among a large section of the colonists. The latter, 
being " Independents " in matters of church govern- 
ance, had already the custom of drawing up a '' church 
covenant," which, being accredited by the members of 
the congregation, became as it were the constitution 
of their spiritual government. The most notable of the 
colonial compacts is the Mayflower Covenant, mentioned 
in a preceding chapter. A particular importance at- 
taches to documents framed in 1639, and named the 
"Fundamental Orders of Connecticut," which are prac- 



128 THE NATURE OF THE STATE 

tically a political constitution adopted by the towns of 
Windsor, Hartford, and Wethersfield, which thus com- 
bined to form the government of Connecticut. On this 
was based the later royal charter of 1662, which, as has 
been seen already, was transferred into a state consti- 
tution. During the great rebellion of the seventeenth 
century in England, the supremacy of the Puritans pro- 
duced in 1647 the famous " Agreement of the People," 
intended to be a fundamental written law superior to the 
power of parliament, and to be ratified by all the nation. 
A little later (1653) the regime of the Protectorate 
was consolidated in the " Instrument of Government,'* 
drawn up by a council of Cromwell's officers. This 
latter was a written constitution. But the restoration of 
the monarchy, theoretically on its old basis, broke up 
the thread of constitutional development and left it to 
be brought to a culmination by the American colonists 
of the next century. 

6. The Distinction between States with Writ- 
ten and those with Unwritten Constitutions an 
Illusory Basis of Division. From what has been said 
one might reasonably expect that the classification of 
governments ought to have included the distinction 
between those that have a written constitution and those 
that have an unwritten. But such a distinction, self- 
evident as it appears at first, is in reality illusory and 
unsatisfactory. In the first place no constitution is 
wholly an unwritten one. Thus in the case of the United 
Kingdom certain parts of the constitution undoubtedly 
consist of written documents; the Magna Carta, the 
Bill of Rights (of 1689), the Act of Settlement (1701), 
and the statutes of 1832, 1867, 1884, and 1885, regu- 



THE FORM OF THE STATE 129 

lating the right to vote and the representation of the 
people, are evident examples. Nor does a so-called 
written constitution of necessity, or even usually, contain 
the whole of the fundamental law of the country to 
which it applies. Any constitution is soon found to be- 
come surrounded in its operation with a growth of pre.- 
cedents and customary usages which presently obtain 
what is practically a binding force, and which become 
in time a part of the constitution in the same sense. The 
most familiar example is seen in the case of the presi- 
dential office in the United States, a third term being 
forbidden by precedent, though not repugnant to the 
written constitution itself. A good illustration of the 
same thing is seen in the government of Italy : the 
"Fundamental Statute" does not prescribe the neces- 
sity of a cabinet system, — of ministers dependent as 
in England on the approval of a parliamentary major- 
ity, — but the precedent set by Victor Emmanuel I 
has been consistently followed, and now the system ^ is 
looked upon as a part of the constitution of the king- 
dom of Italy. 

There are further reasons of still greater cogency for 
refusing to group together the countries with paper 
constitutions as forming a class. It is commonly con- 
sidered that a written constitution stands as a barrier 
against the arbitrary action of the government, the 
supposition being that since the powers of the govern- 
ment are limited and defined by the constitutional in- 
strument, any action of the government outside of its 

* For the special features of cabinet g-overnment in Italy, see 
Lowell, A. L., Government and Parties in Continental Euroj^e, vol. i, 
pp. 151-154. 



130 THE NATURE OF THE STATE 

legal province is void. Sucli is of course the case with 
the Constitution of the United States. But it is a con- 
fusion of thought to suppose that this is a necessary 
consequence of the existence of a written constitution. 
The existence of such restrictions on the actions of the 
government does not follow from the mere fact of there 
being a written constitution, but depends on the ques- 
tion whether or not the provisions of the constitution 
are alterable by the ordinary legislative procedure of 
the government. In the United States this is of course 
not possible ; Congress has no power to widen its own 
jurisdiction. But one can imagine a written constitution, 
alterable by the ordinary method of legislative enact- 
menL This is precisely the case with the constitution 
(the Fundamental Statute) of the kingdom of Italy; 
there is no part of it that cannot legally be altered by 
an act of the Italian parliament. In spite of the exist- 
ence in the one country of a written constitution, and 
its absence in the other, the fundamental law of Italy 
stands on the same footing as that of the United King- 
dom. It is the force of custom and public opinion, not 
any legal check, that limits the power of the existing 
governmental body. It seems, therefore, that to class 
Italy and the United States together, and contrast the 
two of them with the United Kingdom, is to proceed 
from a purely artificial point of view. The division of 
governments into those that have and those that have 
not a paper constitution, is quite misleading. 

Even apart from the question of amendment or alter- 
ation of the constitution, a feature of essential import- 
ance is the validity or enforceability of the constitutional 
restrictions. In the case of the United States, a con- 



THE FORM OF THE STATE 131 

stitutional limitation is rendered valid by tlie peculiar 
power entrusted to the American courts. An act of 
Congress which goes beyond the constitutional powers 
of that body becomes inoperative by the decision of 
the judiciary, to which the executive and legislative 
branches of the government defer. In this arrange- 
ment, which will be discussed more fully in a later 
chapter, lies the true guarantee of the American Con- 
stitution, and it is this fact, and not the mere fact that 
the Constitution is a written one, which offers such 
a special safeguard to public liberty. But this is a 
feature quite peculiar to the American system. The 
courts of Europe have no such function, and the in- 
dividual has no such guarantee. The example of the 
Prussian constitution is a case in point. Between the 
years 1860 and 1865 a struggle was carried on between 
the king of Prussia (acting under the advice of Bis- 
marck and anxious to increase the expenditure on the 
army) and the House of Representatives elected under 
the constitution. The constitution nominally places 
the control of finance in the hands of the parliament, 
declaring that " taxes and dues for the treasury of the 
state can be levied only as they are set down in the 
.budget or ordained by special laws " (art. 100, consti- 
tution of 1850). The king, finding it impossible even 
after recourse to a dissolution, to bend the House of 
Representatives to his will, passed his budget through 
the House of Peers, and collected the taxes without any 
sanction from the lower house. This was of course a 
gross violation of the constitutional provisions. Under 
the American system any individual citizen thus taxed 
could have appealed to the courts for protection. But 



132 THE NATURE OF THE STATE 

the Prussian system does not permit of any such re- 
course, and although the House of Representatives made 
formal protest, it had no power to stop the illegal pro- 
ceedings of the executive. For the reasons thus cited — 
that no constitution is wholly unwritten or wholly writ- 
ten, that even in a written one the vital part of the 
matter lies in the process of revision, and in the relation 
of the courts to the constitution — it is well not to attach 
too much importance to the formal distinction between 
paper constitutions and constitutions relying on custom. 
7. Scope of the Constitution. In the next place 
there is to be considered the scope and extent of what 
is properly to be called the constitution of a state. To 
harmonize with the definition given above, it should 
contain those principles according to which the powers 
of the government, the rights of the governed, and the 
relation between the two are adjusted. This is not the 
case with all written constitutions ; many of them con- 
tain regulations too minute and of too little import- 
ance to be classed as true fundamental law. This feature 
is particularly noticeable in the present constitutions 
of the states of the Union. Their provisions cover not 
only the fundamental regulations of the structure of 
the government, but a great many other things as welU 
Thus the constitution recently adopted in Alabama 
(1901) contains specific provisions in reference to the 
procedure of the legislature, the enumeration of thirty- 
one different classes of private and special legislation 
prohibited to the legislature, and refers to a number of 
miscellaneous matters such as banking, railroad freight 
rates and passes, and the Alabama Polytechnic Insti- 
tute. This is typical of modern American constitutions, 



THE FORM OF THE STATE 133 

whicli have tended constantly to become more and more 
lengthy and explicit. The New Hampshire constitution 
of 1776 contains 600 words, the constitution of Mis- 
souri of 1875 about 26,000, and the present constitu- 
tion of Alabama about as many. The reason for this 
lies in the alteration of public opinion in reference to 
legislative bodies in general. A hundred years ago the 
legislature was the object of unlimited popular confi- 
dence and seemed to embody in itself the sovereign 
power of the people. The experience of a hundred 
years has shown the possibility of corruption in the 
legislature itself, and popular distrust has led to the 
attempt to safeguard the people from venality and cor- 
ruption on the part of their representatives. The re- 
sult is that in a certain sense many of the provisions 
of American constitutions are not of the nature of 
fundamental law. 

It thus becomes a little difficult to say with accuracy 
just what the words " constitutional law " should mean. 
If the phrase is taken in a purely literal sense to mean 
the law contained in a written constitution, we omit 
the accompanying customary usages and judicial inter- 
pretation, and include much that is in the constitution 
but is not fundamental. For example the article (No. 
51) of the constitution of Switzerland which declares 
that the order of Jesuits is not allowed in Switzer- 
land is only constitutional law in the sense that it is in 
the constitution. In the case of a country with a cus- 
tomary constitution, " constitutional law " means all 
such customs, common law, and statutes as are of a 
fundamental nature. This is of course a definition in a 
circle, yet the sense conveyed is fairly obvious. In the 



134 THE NATURE OF THE STATE 

United Kingdom, for example, the acts of Parliament 
of 1832, 1867, 1884, and 1885, regulating the represen- 
tation of the people, are constitutional law ; the factory- 
act of 1901, though passed in the same way by the 
same authority, is not. 

8. Amendment. Something must be said in con- 
clusion in regard to the alteration or amendment of a 
constitution. In such countries as England and Hun- 
gary, revision or alteration is effected by the ordinary 
legislative process. The same is true of certain coun- 
tries with written constitutions, such as Italy. Some 
written constitutions make no explicit provisions for 
revision, as that of Wiirttemberg (1819) and the 
French " charters " of 1814, 1815, and 1830. In these 
cases it is to be presumed that the ordinary legislative 
process includes the revisionary power. But in the 
great mass of written constitutions a special method of 
revision is prescribed, in all cases necessitating a more 
deliberate and difficult process than the passage of an 
ordinary law. The German federal constitution (art. 
78) allows revision by ordinary legislative process, with 
the provision that fourteen votes in the upper house 
are sufficient to defeat the amendment ; inasmuch as 
Prussia has seventeen votes, the article precludes any 
revision without the consent of the king of Prussia, in 
other words, of the German emperor. Various devices 
are adopted in other constitutions, — the election of a 
special parliament on the issue of the revision (as in 
Spain), the reiteration of the demand for revision by 
successive legislatures (French constitution of 1791), 
etc. The systems at present in force in France and 
the United States present contrasted extremes of sim- 



THE FORM OF THE STATE 135 

plicity and difficulty of revision. In France a revision 
can be adopted in a joint session of the Chamber of 
Deputies and the Senate, a provision originally framed 
in the hope of easily converting the republic into ^ 
monarchy. The natural objection to such a simple pro- 
cess of amendment is the absence of security against 
premature and ill-considered change. In the United 
States, on the other hand, the process is so difficult as 
to be almost impossible.^ It is true that the Constitu- 
tion has been amended fifteen times, but an analysis 
of the circumstances under which the changes were 
adopted show that in a certain sense the Constitution 
has never been amended. Thus the ten amendments 
which constitute the " Bill of Rights," or the protec- 
tion of individual liberty against the action of the 
government, are really part of the Constitution itself. 
They were appended in accordance with an agreement 
that was reached at the time of the ratification of 
the Constitution itself and designed to meet the objec- 
tions raised in Massachusetts and elsewhere against 
the possible sacrifice of individual liberty under the 
new national government.^ The Eleventh and Twelfth 
amendments, in reference to bringing suit against a 
state and to the method of electing the President, are 
merely in rectification of oversights, and contain no 
real departure from the intention of the makers of the 

1 See Constitution of the United States, art. v, already quoted in 
Chapter IV, p. 58. " It would seem," says Woodrow Wilson in his Con- 
gressional Government, " that no impulse short of the impulse of self- 
preservation, no force less than the force of revolution, can nowadays 
be expected to move the cumbrous machinery of formal amendment 
erected in Article i." 

'^ See Fiske, Critical Period of American History. 



136 THE NATURE OF THE STATE 

Constitution. The Thirteenth, Fourteenth, and Fif- 
teenth amendments, prohibiting slavery and attempt- 
ing to give equal political status to whites and blacks, 
only received the required ratification by three fourths 
of the state legislatures as a consequence of the Civil 
War and the " reconstruction " of the Southern govern- 
ments.^ The system may therefore fairly be criticised 
as too cumbrous for practical use.^ 

But the most important of all present methods of 
constitutional revision is by a more direct action of the 
people than any of the plans mentioned above. The 
calling of a representative convention elected expressly 
for the purpose of making a constitution may be looked 
upon as the typical American system ; such a consti- 
tution is in nearly all cases submitted to ratification 
by popular vote. Constitutions promulgated directly 
by the conventions themselves (as for example in South 
Carolina, 1895, and in Delaware 1897), are nowa- 
days quite exceptional. It is especially interesting to 
compare with the process of amending the Constitution 
of the United States the methods of revision existing 
in the federal governments of Switzerland and the 
commonwealth of Australia. In Switzerland (consti- 
tution of 1874) a constitutional amendment passes 
through both houses of the legislature, a simple major- 
ity being sufficient, and is then submitted to the vote of 

^ See Curtis, Constitutional History of the United States, vol. ii. 

2 In 1909 the Income Tax Amendment passed the Senate by a un- 
animous vote and the House by a vote of 317 to 14. Under its terms 
Congress is g-iven power to lay taxes on income without apportionment 
among the states. By the close of the year 1911, thirty states had 
ratified, and seven definitely rejected the amendment. Its final adop- 
tion would therefore need the support of 6 of the remaining 11 states 
(Arizona and New Mexico included). 



THE FORM OF THE STATE 137 

the people ; it must be ratified by a majority not only 
of the votes but also of the different cantons that form 
the confederation. It is further provided that a de- 
mand for a revision of the constitution made by either 
branch of the legislature, or by the petition of fifty 
thousand voters, must be followed by a popular vote on 
the desirability of undertaking a revision. The method 
of amendment adopted under the federal constitution 
of Australia is closely similar. Proposals for amend- 
ment are made in the legislature, and after passing both 
houses by an ordinary majority are submitted to the 
people. To be adopted they must obtain a majority of 
the votes cast as a total and be carried in a majority 
of the states. 

READINGS SUGGESTED 
Aristotle's Politics (Jowett's translation, 1885), bk. iii. 
Willoughby, W. W., The Nature of the State (1896), chap. xiii. 
Borgeaud, C, Adoption and Amendment of Constitutions (trans- 
lation, 1895), part i. 

FURTHER AUTHORITIES 
Gareis, Allgemeines Staatsrecht (Marquardsen, Handbuch des 

Oeffentlichen Rechts). 
Woolsey, T., Political Science (1878), vol. i. 

Curtis, G. T., Constitutional History of the United States (189G). 
Fiske, J., Critical Period of American History, 1888. 
Bluntschli, J. K., Theory of the State (1885). 
Sidgwick, H., Elements of Politics (1897). 
Dunning, W., History of Political Theories Ancient and Mediaeval 

(1902). 
Plato, Republic, bk. viii. 
Stevens, C. E., Sources of the Constitution of the United States 

(1894). 
Schouler, J., Constitutional Studies (1897). 



PAET II 
THE STEUCTL'EE OF THE GOVERNMENT 



/'I 



CHAPTEB, I 

THE SEPARATION OF POWERS 

1. Nature of Exeeutiye, Legislative, and Judicial Power. — 2. The- 
ory of the Separation of Powers ; Montesquieu, — 3. Influence of 
this Theory in America and France. — 4. Extent of its Application 
in Existing Governments. — 5. Continental Administrative Law. — 
6. General Criticism of the Theory of the Separation of Powers. 

1. Nature of Executive, Legislative, and Judi- 
cial PoTver. In the first part of the present volume we 
have been concerned with the discussion of government 
as a whole, and with the relations of the entire machi- 
nery of the state to the individual. The purpose of this 
and the following chapters is to analyze in detail the 
structure of government. For this a starting-point is 
found in the division of governmental powers between 
legislative, executive, and judicial bodies. Every gov- 
ernment that occupies more than a quite primitive or 
limited sphere finds itself called upon to perform du- 
ties of a varying nature. There is, for example, a very 
evident difference between the functions exercised by a 
member of a legislature, those of a revenue officer, and 
those of a judge. In the first place the government 
has duties to perform that are legislative and consist 
in the making of laws ; a parliament, a city council, or 
a constitutional convention is a legislative body. This 
function, though of scant importance in primitive so- 
ciety (in which the idea of deliberate lawmaking is 
hardly known), is of vast importance and a matter of 



142 THE STRUCTURE OF THE GOVERNMENT 

constant necessity under the complex conditions of 
modern life. In a certain sense, inasmuch as the mak- 
ing of the law is logically antecedent to its execution 
and to decisions as to its meaning, the legislative func- 
tion is the chief of the powers of government. " The 
legislative power," says Judge Story in his "Commen- 
taries on the Constitution," " is the great and overrul- 
ing power in every free government." Looked at in a 
purely theoretical light, the executive function of the 
government (the carrying out of the law) appears in 
a quite mechanical and secondary aspect. In point of 
fact, however, the functions of the executive branch of 
the government are of great importance. No matter 
how explicitly laws are made, they must of necessity 
leave a wide discretionary power in the hands of those 
who enforce them ; in many matters — most notably in 
relations with foreign states — the executive branch of 
government must act without explicit instructions, and 
is no longer to be regarded as merely the agent of the 
legislative branch of the government. The organized 
physical force — armies, navies, police, etc. — is at the 
command of the executive, — is, in a sense, a part of 
the executive. It is with the executive (in the shape 
of police, revenue officers, postmasters, etc.) that the 
individual citizen is chiefly in contact. Indeed in any 
modern government the executive, even apart from 
the army and navy, vastly outnumbers the two other 
branches. The executive civil service of the United 
States includes over 300,000 positions ; there are less 
than 140 federal judges and only 476 members of 
Congress. The judicial organs of a government, whose 
function it is to pronounce as to the application of the 



THE SEPARATION OF POWERS 143 

law to existing cases, thougli like the executive theoret- 
ically inferior to the legislature, exercise in reality a 
function of the greatest consequence to the citizen, and, 
in the case of the United States, a function of a pecu- 
liar constitutional importance. 

2, Theory of the Separation of Powers. At the 
beginnings of modern democratic government, and in 
particular in the political writings of the eighteenth 
century, it was a cardinal doctrine of political science 
that these three branches of government, the legislative, 
the executive, and judicial, should be kept separate from 
one another. A different body of persons was to ad- 
minister each of these three departments and neither 
body was to have a controlling power over either of the 
others. It was thought that in this way a peculiar 
guarantee, indeed the only adequate guarantee, might 
be given to public liberty. This is what is known as the 
theory of the separation of powers. It is not meant 
that this theory was altogether new in the eighteenth 
century. We find traces of it as far back as Aristotle; 
and Polybius in the sixth book of his " History of 
Rome," in which he treats of the Roman constitution, 
describes in detail and with approval the balanced 
powers intrusted to the senate, the consuls, and the 
tribunes. It was natural, however, that with the de- 
cline of monarchical absolutism and after the gfreat ob- 
ject-lesson of the English revolution of 1688, construc- 
tive theories pointing towards possibilities of popular 
sovereignty should receive especial attention. At the 
hands of Montesquieu, author of the " Spirit of Laws " 
(1748), the theory met with a definite and emphatic 
presentation, destined to give it a lasting influence on 



144 THE STRUCTURE OF THE GOVERNMENT 

subsequent political institutions. "If the legislative 
and executive power," says Montesquieu, " are united 
in the same person or in the same body of persons, 
there is no liberty, because of the danger that the same 
monarch or the same senate may make tyrannical laws 
and execute them tyrannically. Nor again is there any 
liberty if the judicial power is not separated from the 
legislative and the executive. If it were joined to the 
legislative power, the power of the life and liberty of 
the citizens would be arbitrary ; for the judge would 
be the lawmaker. If it were joined to the executive 
power, the judge would have the force of an oppres- 
sor." ^ A similar judgment is expressed by the great 
English jurist, Blackstone, in his " Commentaries on 
the Laws of England " (1765). " In all tyrannical gov- 
<3rnments the supreme majesty, or the right both of 
making and enforcing laws, is vested in the same man 
or one and the same body of men ; and when these two 
powers are united together there is no public liberty." 
Both of these authors are led to the statement of the 
theory of distributed powers from their analysis of the 
British constitution. At the time at which they wrote 
the cabinet system was only in the earlier stage of its 
development. The junction of both the virtual execu- 
tive and the legislative power in the hands of a cabinet 
or committee chosen out of the legislature was not the 
evident fact that it is to-day. A British ministry of 
Montesquieu's time was still not a unit : it allowed of 
divergence of opinion among its members ; nor did the 
latter all take office or leave it at the same time. Mon- 
tesquieu, therefore, somewhat excusably overlooked 

^ Esprit des Lois, bk. xi, chap. vi. 



THE SEPARATION OF POWERS 145 

what has since become the leading fact of the British 
constitution, and thought to see in it a balance of 
power effected between the king and the two houses of 
Parliament, neither of whom was supreme over the 
other, and from each of whom the judiciary was to a 
large extent independent. Blackstone, viewing the con- 
stitution only as a lawyer, knows nothing of a cabinet. 
The ministry as known to the law even at the present 
day are the appointed servants of the crown. The fact 
of their political unity and membership of the legisla- 
ture is only a matter of custom, not of law. 

3. Influence of this Theory in America and 
France. The doctrine of public liberty effected by 
distribution of power became thus almost an article of 
faith with political writers of the eighteenth century. 
The fact was of vital importance for the history of the 
United States. At the time of the establishment of 
the state governments the doctrine was put into prac- 
tice by the separation, not of course complete, but yet 
far reaching, of the different branches of the govern- 
ment. The independent election of state governors and 
legislatures, the absence of the power of dissolution, 
were embodied in the state constitutions, and have re- 
mained as fundamental parts of the American system 
of government. That the adoption of this plan w^as 
conscious and deliberate is seen in the often quoted 
passage of the Massachusetts constitution of 1780 
(part i, art. xxx) : "In the government of this com- 
monwealth, the legislative department shall never exer- 
cise the executive and judicial powers, or either of 
them ; the executive shall never exercise the legislative 
and judicial powers, or either of them ; the judicial 



146 THE STRUCTURE OF THE GOVERNMENT 

shall never exercise the legislative and executive powers, 
or either of them ; to the end it may be a government 
of laws, and not of men." 

The same theory exercised the greatest influence over 
the convention of 1787, in which the federal constitu- 
tion was framed. Its members recognized, indeed, the 
need for a modification of the rigidity of the doctrine 
of separation, but in the main they accepted it and 
made it the basis of the Constitution of the United 
States. " The accumulation of all powers," says the 
" Federalist " (the set of essays written in defense of 
the Constitution by Hamilton, Madison, and Jay), 
" legislative, executive, and judicial, in the same hands, 
whether of a few or many, and whether hereditary, self- 
appointed, or elective, may be justly pronounced the 
very definition of tyranny." 

The fact that even the state constitutions of 1776 
and 1777 and the federal constitution of 1787 do not 
adopt an absolutely complete separation of powers of 
government, naturally suggests the question in how far 
such a separation would be possible, and what would 
be implied by a complete adoption of the principle. 
It would mean a constitution constructed on such a 
plan as the following: A legislature elected directly 
by the people, a set of executive officers either elected 
by the people (independently of the action of the legis- 
lature) or appointed by some person or body of per- 
sons elected by the people ; judges similarly elected 
and independent as to their tenure of office and emolu- 
ment of both the legislature and the executive. Even 
then it might be questioned whether the liability of 
executive officers to be tried before the judiciary for 



THE SEPARATION OF POWERS 147 

breaches of official duty or violation of their legal 
powers, would not be at variance with a logically com- 
plete separation ; this, however, will be considered later 
in dealing with the administrative law of Continental 
Europe. But granting such a separate election and 
independent tenure of office on the part of the three 
departments of government, there would still remain a 
sense in which the separation would not be complete, 
in which indeed it can never be complete without a 
rednctio ad ahsurdum. The law enforced by the ex- 
ecutive and adjudicated on by the courts would still be 
the law made by the legislature. It is to be noted also 
that such law might conceivably be extremely tyran- 
nical and unjust. The executive and the judges would 
still have to apply it, and thus the separation of power 
in and of itself would offer no guarantee of individual 
liberty. 

The theory of separation obtained during the revo- 
lutionary era in France an influence no less marked 
than In the United States. The constituent assembly 
of 1789 adopted it as a fundamental principle in their 
construction of a new government. The sixteenth 
article of the formal Declaration of Rights with which 
they prefaced their constitution, declares, " Every so- 
ciet}^ in which the separation of powers is not deter- 
mined has no constitution." In accordance with this 
general principle, the constitution established a legis- 
lature not dissolvable by the king, forbade the ministers 
and other executive officers to hold seats in the lej^is- 
lature, gave to the king no right of initiative, and only 
a partial veto power, and instituted judges elected by 
the people. The later constitution of 1795 modified 



148 THE STRUCTURE OF THE GOVERNMENT 

the separation by instituting a plural executive, — the 
Directory, elected by the legislature itself. 

4. Extent of its Application in Existing G-ov- 
ernments. In the course of the nineteenth century 
the theory of separated powers has lost a great deal 
of its former credit. The conspicuous example of the 
British constitution invalidates it as a universal propo- 
sition. Here the development of the cabinet system 
since Montesquieu's time has thrown the virtual direc- 
tion of both legislative and executive power into the 
hands of the same body of men. Yet it would be ab- 
surd to say that public liberty in the United Kingdom 
has thereby been sacrificed. As the British constitution 
now stands, the group of eighteen or twenty persons 
who compose the cabinet have the conduct of the 
executive government. They also direct the course of 
legislation, since a majority of the predominant part 
of the legislature — the House of Commons — are pre- 
pared to support their measures. Should they lose that 
support they resign their office. Thus the very con- 
trary of the idea of divided powers seems to be the 
case. The executive officers remain such only so long 
as they retain the legislative power. The legal theory 
of the constitution, on the other hand, still offers the 
spectacle of more or less opposing powers mutually 
balanced, — the king and his ministers (appointed, in 
the theory of the law, according to his pleasure, and 
being merely his servants) conducting the executive 
government, while the houses of Parliament make the 
laws. The analysis of the British government given 
by Walter Bagehot, the distinguished economist and 
essayist, in his " English Constitution " (1867), has 



THE SEPARATION OF POWERS 149 

served to show how completely the development of 
cabinet government has rendered the earlier view of 
the British constitution inapplicable to the present 
situation. In certain other respects the British consti- 
tution offers in actual fact some features of distributed 
powers, the most notable being that of the tenure of 
office of the judges, who are made virtually independ- 
ent by being appointed for life or good conduct. 

Nor is there a separation of powers observed in the 
present parliamentary governments of France and Italy. 
In France the president is elected by the legislature. 
His ministers are, in practice, though not in law, the 
representatives of a majority in the Chamber of Depu- 
ties. In the same way the king of Italy governs by 
means of a party ministry. In Germany, in the actual 
working of the federal constitution, the powers of gov- 
ernment are not distributed. The German emperor 
holds the executive j^ower of the federation. In his 
capacity of king of Prussia he has also a very great 
share of legislative control. In the first place there are 
many measures ^ — those introducing any change of 
existing regulations concerning the army, navy, cus- 
toms, and excise — which cannot be enacted without 
the consent of his appointed delegate in the Bundes- 
rath or upper house of the legislature. Through the 
same channel he enjoys an initiative power for any 
kind of legislation, the control of seventeen out of fifty- 
eight votes in the Bundesrath, and a veto upon consti- 
tutional amendments. 

Even under the Constitution of the United States, 
the principle of distributed powers is only adopted in 

^ Federal Constitution, articles xxxv and xxxvL 



150 THE STRUCTURE OF THE GOVERNMENT 

the federal government to a modified extent. The 
executive is not vs^ithout a share in legislation, since 
the President has a partial veto power on the acts 
passed by the Congress, and something resembling a 
power of initiative by means of presidential messages. 
Nor is the legislature without share in the executive 
government, as is seen in the ratification by the Senate 
of treaties and appointments. Tiie judges are the ap- 
pointees of the executive, and the courts are empowered 
to pass on the constitutionality of the acts of the two 
other branches of the government. Even this qualified 
separation existing under the law of the Constitution 
is still further modified in the actual operation of the 
government. Here the existence of the party system 
is an important factor. Though standing outside of the 
legal machinery of the government, it none the less 
acts as a bond of union between the legislature and the 
heads of the executive government. Whenever the 
executive and the majority in the houses of Congress 
are of the same political party (as has been continu- 
ously the case, for instance, between the years 1895 
and 1907), they are under the guidance of common 
councils, and are united in the pursuit of the same 
ends. It is possible, indeed, to look upon the singu- 
larly systematic and powerful growth of the party sys- 
tem in the United States as a sort of " natural " evolu- 
tion consequent upon the attempt to keep apart the 
powers of government ; an attempt, as it were, on the 
part of nature to rectify an error in organic structure, 
a process analogous to the healing of a fractured limb.* 
In the state governments the separation of powers is 

* See F. Goodnow, Politics and Administration. 



THE SEPARATION OF POWERS 151 

more nearly complete. The separate election by the 
people of the governor and other executive officers, 
the legislature, and the judges, is the prevalent con- 
stitutional arrangement. The partial veto power given 
to the governor in nearly all the states of the Union, ^ 
and the governor's right of sending messages to the 
legislature, are a departure from the rigidity of the doc- 
trine. In all the states, too, the courts have cognizance 
of the official acts of the members of the governmento 

5. Continental Administrative La"w. In the coun- 
tries of continental Europe an application of the prin- 
ciple of separation is made quite contrary to American 
ideas of government. The officers of the government 
acting in their official capacity cannot be brought to 
account before the ordinary courts of law ; nor can the 
courts question the validity of an act of the legislature. 
Such a system professes to rest on the principle of the 
separation of powers, by protecting the executive and 
judiciary from the control of the third branch of the 
government. The protection, however, is only afforded 
at the expense of the individual citizen, the practical 
effect of this fallacious form of separation being to 
{Strengthen very much the hands of the executive. Tlie 
peculiar relation thus established between the execu- 
tive and judicial branches of the government will be 
treated more fully in a later chapter. 

6. General Criticism of the Theory of the Sep- 
aration of Po"wers. It remains to consider, in con- 
clusion, to what extent the theor}^ of the separation of 

^ The g'overnor has a partial veto in forty-one of the forty-five 
states. The exceptions are Rhode Island, Ohio, Delaware, and North 
Carolina. See Professor A. B. Hurt, Actual Government, pp. 130, 137. 



152 THE STRUCTURE OF THE GOVERNMENT 

powers is to be regarded as true. Stated in the form 
of a universal principle, as by Montesquieu and Black- 
stone, in the quotations above, it is undoubtedly false. 
It is not true that there cannot possibly be public lib- 
erty where executive and legislature are joined in the 
same hands. The example of Great Britain alone amply 
proves this. Nor is it true either that the separation of 
the powers of government of necessity guarantees the 
individual against possible tyranny, establishes in and 
of itself a government " of laws and not of men." A 
single government board or body of directors need not 
of necessity act tyrannically ; nor does it follow that an 
executive officer and a legislative council elected and 
acting separately will of ?iecessity act in the public in- 
terest. But though no such universal formula can be 
laid down, it remains true that in the actual conduct of 
public affairs a certain degree of separation of powers 
makes towards efficient government. The divergent 
requisites in the composition of executive and legisla- 
tive bodies will be treated in the next chapters ; it is 
apparent, however, that absolute identity of the two is 
not to be recommended. The separation of the judiciary 
to the extent at least of independence in tenure of office 
is admitted by all to be desirable. The question of the 
advisability of establishing an executive controllable by 
the legislature (as in the cabinet system of Great Brit- 
ain), or of following the system adopted in the state 
governments, is a disputed point. Its solution will de- 
pend upon the particular circumstances and the his- 
torical antecedents of each community. Americans are 
inclined to look with favor on the system of popular 
election of state officers. Such writers as A. Lawrence 



THE SEPARATION OF POWERS 153 

Lowell in his " Essays on Government " and John Fiske, 
" Civil Government in America," have ably argued in 
defense of the American plan. The English, on the 
other hand, are inclined to view the union of powers in 
the hands of the cabinet as the most admirable feature 
of their system of government. 

READINGS SUGGESTED 
Montesquieu, Esprit des Lois (1748), bk. xi, chap. vi. 
The Federalist (1788), Essays Nos. 47-51. 
Bagehot, W., English Constitution, chap. ii. 

FURTHER AUTHORITIES 
Polybius, History of Rome, bk. vi. 

Goodnow, F., Comparative Administrative Law (1897), 
H^ie, M. F., Les Constitutions de la France (1880). 
Goodnow, F., Politics and Administration (1900). 
Hart, A. B., Actual Government (1893). 
Lowell, A. L., Essays on Government (1889). 
Fiske, J., Civil Government in America (1891}<. 



CHAPTER II 

THE LEGISLATURE 

1. The Legislature ; General Requisites, Procedure, etc. — 2. The 
Bicameral System ; Reasons for its Adoption. — 3. Composition of 
Upper Houses. — 4. Distribution of Power between the Two Houses. 
— 5. Direct Legislation ; the Initiative and the Referendum. 

1. The Legislature ; General Requisites, Pro- 
cedure, etc. It lias been said in the preceding chapter 
that there is a necessary diversity in the composition of 
the different branches of the government to meet the 
distinctive requirements of each. The executive is con- 
cerned with action more than deliberation ; promptness 
and unity of purpose are the prime requisites. For the 
judiciary, the technical knowledge of the actual law to 
be applied, and a trained logical faculty to be used in 
its application are above all necessary. The legisla- 
ture, on the other hand, demands an entirely different 
set of qualities. The legislature is, par excellence, a 
deliberative body, and for deliberation two heads are 
better than one, and two hundred are better than two. 
A legislative body must consist of many persons, repre- 
senting numerous interests, various points of view, and 
different sections of the community. No precise size can 
be indicated as proper for a legislature; as numbers 
increase the gain in added wisdom is offset by the in- 
creased cumbrousness. The French constituent assem- 
bly, called in 1789, consisted of nearly 1200 members. 
This was the largest legislative body of modern times, 



THE LEGISLATURE 155 

and was found hopelessly unwieldy. Of the popularly 
elected legislatures of the world, the House of Repre- 
sentatives at Washington in 1913 contained 435 mem- 
bers, the British House of Commons 670, the French 
Chamber of Deputies 597, the German Reichstag 397, 
the Italian Deputies numbered 508, and the Spanish 
Congress had 406 members. The number of members 
in the state legislatures of the United States varies 
very much. New Hampshire (1913) has 405, Massachu- 
setts 240, and Virginia 100 in the lower house, while 
Delaware has only 35. 

It is hardly possible to accomplish the work of actual 
legislation among such large bodies of men, without 
the adoption of definite plans and systems of procedure. 
Any large gathering which acts at haphazard and with- 
out formal rules is liable to become a mere babel of 
tongues ; its resolutions, to use Mr. Bagehot's phrase, 
get " wedged in the meeting." This was the case with 
the French Assembly of 1789, already referred to, which 
in its first enthusiasm was inclined to proceed " accord- 
ing to the promptings of the si)irlt," rather than to 
follow any formal plan. Tliey rejected the suggestion 
that they should adopt the standing orders of the House 
of Commons. "They discuss nothing in their assem- 
bly," wrote Gouverneur Morris, at that time in Paris, 
and an interested observer of their proceedings. "One 
large half of their time is spent in hallooing and bawl- 
ing." Universal experience has therefore shown the 
need of what is called legislative procedure, a definite 
method of doing business which the legislature adoj^ts 
as part of the necessary formality of the making of a 
law. Such rules have been adopted by all the chief 



156 THE STRUCTURE OF THE GOVERNMENT 

legislatures of the world. They are of course made by 
the legislature itself, and can consequently be set aside 
if need be in moments of stress. The objects aimed at 
are the orderly and efficient dispatch of business, the 
prevention on the one hand of precipitate and ill-con- 
sidered action, and on the other, of fruitless prolixity 
of debate. The rules thus adopted tend to be ex- 
tremely intricate and confusing by reason of the vast 
amount of business that tries to force itself upon a 
modern legislature. Mr. Bryce in his " American Com- 
monwealth " tells us that an industrious member of the 
House of Eepresentatives needs one whole session to 
learn the rules of procedure. 

A few general features of procedure adopted in most 
legislative bodies may be mentioned. The most impor- 
tant is the device of requiring a bill to be voted on, 
not once and for all, but at three separate " readings," 
or intervals of time. This is intended to prevent the 
legislature from acting on the spur of the moment, and 
committing itself to a measure under the influence, 
perhaps, of momentary emotion. In the British House 
of Commons, " the member who desires to introduce a 
measure gives notice ... of his intention to do so. 
When the motion comes on in its order, he moves for 
leave to introduce a bill. . . . An order of the House 
is made that the bill be prepared and brought in by the 
mover and other members named by him. The bill may 
then immediately be presented, which is done by the 
member appearing at the bar, whereupon the Speaker 
calls upon him by name, he calls out, ' A bill, sir,' and 
is desired by the Speaker to bring it up. He brings it 
to the table and delivers it to the clerk of the House, 



THE LEGISLATURE 157 

by whom its title is read aloud. The questions that a 
bill ' be now read a first time,' and that it be printed 
are put without amendment or debate ; an order is 
then made that it be read a second time on a day 
named." On this day the bill is again brought up, and 
a vote taken on the question that the " bill be now 
read a second time ; " having successfully passed this 
stage it is referred to what is called a committee of the 
whole House ; here it is discussed, voted on clause by 
clause, and probably amended. At the conclusion of 
this stage a day is set for the final consideration of the 
bill ; the bill is presented in its revised form to the 
House, and unless further amendents are now carried, 
it is submitted to its third and final reading. Even 
after this the bill may have to be reconsidered if 
amended in the Upper House. ^ 

Another device of legislative procedure is the dele- 
gation of the work of the legislature to a series of 
committees. The aim of this is to facilitate the dis- 
patch of business, and to enable the legislature, by 
dividing itself into sections, to multiply its powers of 
work. The system has been most completely developed 
in the House of Representatives. Here the so-called 
first and second readings are a purely perfunctory 
matter, and mean the reading of the title by the clerk. 
After this the bill is referred to the appropriate stand- 
ing committee. These are nominated by the speaker, 
and are representative of both the great political par- 
ties. In the Sixty-Second Congress there were over sixty 
standing committees of the House of Representatives; 

^ Anson, Law and Custom of the Constitution, part i, chap, vii, sect, 
ii, § 2. 



158 THE STRUCTURE OF THE GOVERNMENT 

the committees on Ways and Means, on Appropriations, 
on Banking and Currency, on Commerce, on Claims, 
Manufacturing, Pensions, etc., are among the most 
important. The great majority of bills never survive 
their reference to a committee ; the committee, though 
it has no formal power to negative a bill, destroys 
them either by making an adverse report or by in- 
troducing another bill as a substitute or by simple 
neglect. Such a system, accompanied as it is by strin- 
gent rules of debate, tends of course to remove the ac- 
tual conduct of business from the House itself, and to 
discourage independent action on the part of individual 
members. The French Cabinet of Deputies adopts the 
peculiar system of dividing its members by lot into 
eleven sections or panels ; out of these a special com- 
mittee is elected (by the members of the panel) for 
each bill that is presented. Such a plan is plainly un- 
satisfactory, as it does not accord with the system of 
cabinet government supposed to operate in the French 
legislature. The hazard of the lot may lead to govern- 
ment bills being handed over to opposition committees. 
It is easier, however, to see the faults in legislative pro- 
cedure than to suggest adequate remedies. 

A further point of importance in the conduct of 
legislative business is the need of some method of for- 
cibly bringing the debate to a close. The procedure of 
most assemblies allows means whereby a vote may be 
taken on the question of terminating the discussion and 
voting on the matter under consideration. To this general 
Tule the Senate of the United States is an exception ; 
it has been a part of the traditional dignity of that body 
not to interfere with the freedom of discussion by clos- 



THE LEGISLATURE 159 

ing the debate.^ In tlie House of Representatives, how- 
ever, the closure of the debate, the "previous question," 
as such a motion is called, may be moved by any mem- 
ber, and is carried if supported by a majority of those 
present. Until quite recently the British House of 
Commons had no such rule. It happened, however, that 
during Mr. Gladstone's second administration (1880- 
85) the Irish members took advantage of this fact to 
block all parliamentary business by talking against 
time. This has rendered it necessary for the House 
somewhat reluctantly to adopt a rule of closure (stand- 
ing order of 1882, revised 1887). Under the present 
regulations a motion can be made for terminating the 
debate; the speaker is allowed to use his discretion as 
to whether or not he will submit the motion to a vote. 
A similar purpose is effected by what is called the 
" closure by compartments " or " the guillotine," which 
consists in a resolution of the House either altogether 
precluding discussion on certain clauses of a bill or lim- 
iting the time to be allotted to the bill or to parts of 
it. This rather drastic form of procedure was applied 
in the case of the Home Rule Bill, which narrowly 
passed the Commons in 1893.^ 

2, The Bicameral System ; Reasons for its 
Adoption. Of all the means that have been used 
to secure, in the work of legislation, a due amount of 
caution and reflection, the most important is the divi- 
sion of the legislature into two parts, creating thus 
what is called a two-chambered or bicameral legislature. 

^ In reference to the closure of debate in American Legislatures, 
see Hart, Actual Government, § 11(5. 
^ See Anson, Law and Custom, part i. 



160 THE STRUCTURE OF THE GOVERNMENT 

It is not meant that the desire to avoid precipitate 
action is the sole reason for establishing a legislature 
of this sort ; it will presently be seen that it often 
serves other purposes as well, but such is none the less 
the main ground on which the separation of the legisla- 
ture into two parts is to be defended. At the present 
time the bicameral system is of almost universal preva- 
lence. The United States, the United Kingdom, France, 
Germany, and all the chief countries of Europe have 
bicameral legislatures. The kingdom of Greece alone 
vests the legislative power in a single chamber (the 
Bule). Mexico and the South American states have 
copied the United States in establishing " congresses " 
composed of senates and houses of representatives, in 
some cases (as in Brazil) denominated chambers of 
deputies. Even in the subdivisions of federal govern- 
ments the bicameral structure of the legislature is often 
found. All of the forty-eight states of the Union have 
leofislatures consistins: of a senate and another house. 
In Canada two of the provinces (Quebec and Nova 
Scotia) have an upper and a lower house, and the 
*' states " of the commonwealth of Australia, and the 
different kingdoms, duchies, etc., which make up the 
German federation have all double legislatures. Japan, 
in reconstructing its government in the light of Eu- 
ropean experience in 1889, deliberately set up a bi- 
cameral system. 

The objections, indeed, against a unicameral system 
are of overwhelming force. ''' Of all the forms of gov- 
ernment which are possible among mankind," writes 
the distinguished historian W. E. H. Lecky, " I do not 
know of any which is likely to be worse than the gov- 



THE LEGISLATURE 161 

ernment of a single omnipotent democratic chamber." ^ 
Mr. Lecky undoubtedly states the case too strongly. 
The fact remains, however, that the unicameral legisla- 
ture has been tried and found wanting. A single legis- 
lative house, unchecked by the revising power of an- 
other chamber associated with it, proves itself rash and 
irresponsible; it is too much exposed to the influence 
of the moment; it is swayed by emotion, by passion, by 
the influence of oratory ; it is liable to a sudden access 
of extravagance or of retrenchment. But quite apart 
from these more or less psychological arguments, there 
are other practical objections to a single legislature. 
Elected (in most cases) all at the same time, its mem- 
bers represent the opinions of the community at a par- 
ticular moment and on particular issues. But the lapse 
of time and the appearance of new public questions 
may render a legislature such as this quite out of har- 
mony with public opinion long before its term has 
expir;3d. A somewhat natural confusion of thought 
tended in the past to confound the existence of a single 
legislative chamber with the jmnciple of popular sove- 
reignty, as if the rule of the people would not allow of 
the existence of a second house. Such a confusion arose 
from the historical fact that in its origin the British 
House of Lords was an aristocratic institution. As a 
consequence of this, the democrats of the French Rev- 
olution adopted (1791) a legislature of a single house; 
the proposal to unite it with an upper chamber was 
rejected in the Constituent Assembly as savoring of 
aristocratic ideas. The same error was committed in 
1848 in the constitution of the second French republic. 

1 Democracy and Liberty. 



162 THE STRUCTURE OF THE GOVERNMENT 

The abortive German parliament of 1848 consisted of 
a single house. Even in the United States unicameral 
legislatures have been tried. Georgia and Pennsylvania 
in 1790, and Vermont in 1836, successively abandoned 
the system in favor of the now universal double legis- 
latures. The idea that the existence of a second branch 
of the legislature is not compatible with popular sove- 
reignty is indeed purely fallacious. The two houses 
may each of them draw their power from the people, 
although elected for different terms and by different 
districts. The division between the two need not in 
any way imply the existence of caste, or follow the line 
of the social stratification of society. The senates of 
the United States and France are obvious illustrations. 
3. Composition of Upper Houses. Granted the 
need of the existence of an upper house, the next point 
to be considered is the manner of its composition. It 
may be here incidentally mentioned that the term 
" upper house," familiarly used to refer to a particular 
part of the legislature, is of course at the present day 
a misnomer. In the matter of constitutional power the 
so-called upper house is in nearly all cases the weaker 
of the two. The term is merely a historic one ; for lack 
of a better, it is still convenient to retain its use. The 
composition of an upper house may be based on the 
principles of hereditar}^ office, of appointment, of elec- 
tion, or on a combination of these. Let us consider 
these different methods in turn. The hereditary prin- 
ciple as applied to the political construction of the 
future need not be taken seriously. It is not probable 
that any civilized community, not already having a 
hereditary legislature, will deliberately bring one into 



THE LEGISLATUEE 163 

being. It is true that the principle was used to some 
extent in the creation of the House of Lords in Japan 
(1889), but rather as a recognition of social and politi- 
cal differences already existing than as a creation of 
new ones. " The idea of hereditary legislators," wrote 
Thomas Paine in his "Rights of Man " (1791), "is as 
inconsistent as that of hereditary judges, or hereditary 
juries, and as absurd as an hereditary mathematician, 
or an hereditary wise man, and as ridiculous as an 
hereditary poet-laureate." It is one thing, however, to 
object to^he hereditary principle in the construction of 
a new legislature, and another to demand its abolition 
where it already exists. In many countries it has had 
its origin in the historic evolution of the government, it 
corresponds to the social distinctions which exist as an 
undeniable fact in the structure of the community, and it 
operates on the whole fairly well. Such is undoubtedly 
the case with the British House of Lords. There is at 
present no very Intense opposition to the continued ex- 
istence of the house : true, the radicals and the socialists 
demand its abolition, and many liberals, such as Lord 
Rosebery and Mr. Gladstone, have threatened it with 
reform. But the opposition to it from the liberals has 
arisen rather from the fact that the House of Lords is 
overwhelmingly and hopelessly conservative than from 
repugnance to the nature of its structure. 

The British House of Lords is based, indeed, on the 
hereditary princljde to a larger extent than au}^ exist- 
ing legislature. It contains in all about six hundred 
members (the number varying through deaths and new 
creations of peerages). Of these only four are mem- 
bers appointed for life, — the four eminent jurists who 



164 THE STRUCTURE OF THE GOVERNMENT 

are created lords of appeal, to supply the House with 
proper legal knowledge when sitting as a court, — 
twenty-six are archbishops and bishops of the Estab- 
lished Church, sixteen are elected by the Scotch peers 
from among their number, twenty-eight are elected by 
the Irish peers, and the rest are the members of the 
peerage of the United Kingdom. The creation of a 
peerage carries with it the hereditary right to a seat 
in the House of Lords, nor has the crown the power to 
make life appointments other than the four mentioned 
above. The Continental legislatures which pake use 
of the hereditary principle apply it only in a partial 
degree to the composition of the upper house. Along 
with the princes of the blood and the hereditary mem- 
bers, there are included a large number of members 
appointed by the crown for life only. This is the case 
with Prussia, Austria, Hungary, and Spain. But of 
these it is only in Hungary that the hereditary peers 
form a majority of the house. In Spain and Austria 
a representation is also given to the Roman Catholic 
Church ; in Hungary the Greek, Protestant, and Ro- 
man Catholic churches are all represented in the upper 
house ; the clerical representation is in all cases very 
much in the minority. The Prussian House of Lords 
includes a number of elected members representing the 
land-owners, together with representatives of the uni- 
versities, the mayors of towns of over fifty thousand 
people, etc. Spain has also a large number of elected 
"senators," representing the commercial and provincial 
states, the universities, etc. It is to be observed that 
even in cases where the hereditary seats are deliber- 
ately granted to the nobles under a modern constitu- 



THE LEGISLATURE 165 

tion (as in Prussia, 1850, Spain, 1876), tliey really 
represent a continuation of the peculiar civil and po- 
litical privileges (rights of local government, feudal 
dues, immunity from taxes, etc.) formerly enjoyed by 
the nobles, or a compensation for the loss of the same. 
The hereditary portion of the legislature is thus every- 
where to be regarded only as a survival of the past. 
There are no hereditary members in the upper houses 
of France, Switzerland, the Netherlands, Denmark, 
Belgium, Norway, Sweden, Italy, excepting only, in 
the latter case, the princes of the royal family. 

In many legislatures the seats in the upper house, 
or at any rate in a part of it, are neither held by a 
hereditary tenure nor filled by election. The members 
are appointed to their office, the nominations being 
made almost invariably by the executive government. 
Such a system, though at first sight repugnant to the 
idea of popular government, has a great deal in its favor. 
Experience has shown that the process of popular elec- 
tion does not always result in the selection of the ablest 
and most upright men of the country. Election is apt 
to favor the candidates who possess in a high degree 
the more popular arts, who have a readiness, or even 
a ready buffoonery in speech, who are not sensitive to 
political abuse, and w^ho have a reputation (military, 
for example) calculated to appeal to the imagination 
of the crowd. It does not follow that these men, 
when elected, are the best suited for the legislative 
office. There are in every community many men of 
very great talent, conspicuous perhaps in science or 
literature, who w^ould never be elected at the polls, who 
would probably hesitate to offer themselves as candi- 



166 THE STRUCTURE OF THE GOVERNMENT 

dates, and who nevertheless are admirably fitted both 
by their intellect and their character for a seat in the 
legislature. The system of appointment renders it pos- 
sible, in theory at least, for men of this class to be 
selected. This is the principle that is aimed at in the 
nominations to the senate of Italy, where the condition 
obtains that the person nominated must either have 
filled a high office, or have acquired fame in literature, 
science, or some other pursuit tending to the benefit of 
the nation. Many of the Continental legislatures, as al- 
ready seen, admit of a partial construction of the upper 
house on this plan. The system of nomination is seen 
in its entirety in the senate of the kingdom of Italy 
and in the senate of the Dominion of Canada. In 
Italy all the senators, exclusive of the members of the 
royal family, are nominated for life by the king, and 
are selected out of the following classes, — bishops, 
high officials, members of the lower house after three 
terms of service, members of the Royal Academy of 
Science, those who pay six hundred dollars a year or 
more in taxes, and men who have benefited the nation 
in literature, art, etc. In Canada the senate is com- 
posed of members nominated for life by summons of 
the Governor General, the total number and the num- 
ber from each province being limited. Experience has 
unfortunately shown that nominated senates are bet- 
ter in theory than in fact. The difficulty encountered 
in practice is that, whatever may be tlie nominal con- 
stitutional power of such a senate, it is in reality un- 
able to act as a counterbalancing force to the house 
elected by the people. The senate of Italy is a feeble 
body, and can offer no real opposition to the Chamber 



THE LEGISLATURE 167 

of Deputies. In Canada also the parliamentary life 
and parliamentary power are centred in the House of 
Commons. 

It remains to consider the system of election as ap- 
plied to the composition of upper houses. This is the 
method used, either in direct or indirect form, in the 
United States, both in the federal and state govern- 
ments, in Mexico, Cuba, and the other Latin American 
republics, in France, Belgium, and the commonwealth 
of Australia. The difficulty encountered here at the 
outset is the danger of making the upper house a mere 
reduplication of the lower, which would serve but little 
purpose, and might lead to a chronic constitutional 
deadlock. Various means are taken to overcome this 
difficulty. In the first place, in a federal government, 
especially since the example set by the United States 
in 1787, the problem may be said to solve itself : the 
upper house may be made especially representative of 
the units of the federation, the lower house may repre- 
sent the i)eople at large on a basis of population. Thus 
there are in the United States two senators for each 
state, in Cuba four senators for each ; the senate of 
Brazil has three from each state, and the Australian 
senate is similarly composed. In the German federal 
government the constituent parts of the federation are 
represented in the Bundesrath, not exactly on a foot- 
ing of equality, nor yet in proportion to population ; 
even the smallest have one vote each, and Prussia, the 
largest, has only seventeen votes. In all these cases 
the representation in the lower house is according to 
population. This is an extremely useful device, as it 
renders a federation possible between units of differ- 



168 THE STRUCTURE OF THE GOVERNMENT 

ent sizes, tlie smaller of which would be too jealous of 
the larger to enter a union on a basis of representa- 
tion purely proportionate to numbers, while the larger 
states would be unwilling to accept a federation on 
terms of complete equality with the smaller ones. 

A further method of distinguishing the two houses 
is found in varying the system of election and adopt- 
ing a direct election for the lower house, and indirect 
for the upper. This is best seen in the case of France. 
The Chamber of Deputies is elected by direct universal 
suffrage from districts of (approximately) equal pop- 
ulation. The election, of the senate is indirect, and 
is made by an " electoral college," in each department 
of France, consisting of the deputies, councilors-gen- 
eral and district councilors (members of the councils 
for local government), and representatives from the 
municipal council of every commune : the latter class 
form a large majority of the total college. The origi- 
nal intention was to make the senate especially repre- 
sentative of the organic life of the commune, or parish, 
while the deputies should represent the nation at large. 
Indirect election is also used in the United States, 
where the United States senators are elected by the 
state legislatures. In the state governments the sena- 
tors are elected by the people, the election district 
being, however, different from that used for elections 
to the Assembly. In addition to the difference in the 
manner of elections, a differentiation can be made by 
the use of different electoral districts for the two 
houses, as already indicated, by adopting terms of 
office of different length, and by the system of partial 
renewal. For example, a United States senator sits 



THE LEGISLATURE 169 

for six years, a member of the House of Representa- 
tives only for two ; in France, while the deputies have a 
four years' term, a senator sits for nine years. Simi- 
larly in the United States, one third of the Senate is 
renewed every two years ; in France and in the Nether- 
lands, one third of the upper house is renewed every 
three years. This method of partial renewal is of par- 
ticular efficacy and importance. It lends a character 
of permanency and stability to the upper house, .which 
offsets the tendency of the lower one to a too complete 
change of membership and of sentiment as the result 
of a general election. 

4. Distribution of Power between the Two 
Houses. So much for the question of the composition 
of the two houses ; let us turn now to consider the rel- 
ative degree of power to be intrusted to them. The 
usual practice is that the two houses are, in almost all 
matters of legislation, equal and coordinate ; either 
house may originate a bill, and no bill thus originated 
can become law without the consent of the other house. 
Either house, too, may propose amendments to a bill, 
which will only become valid by receiving the consent 
of the other. To this general rule there is one most 
notable exception. In the case of bills referring to the 
raising and spending of money, the powers of the upper 
house in most of the chief states of the world are moie 
or less limited. Fortius different reasons are assigned, 
in part historical, in part rational. Historically we 
may consider this to have come al)out in imitation of 
the relation existing between the House of Lords and 
the Commons in England, where the power of the purse 
ever since the fourteenth century has been vested ex- 



170 THE STRUCTURE OF THE GOVERNMENT 

clusively in the commons.^ But it hardly seems correct 
to regard this almost universal restriction on the power 
of upper houses as merely an accidental adaptation. 
There seems excellent reason for it as well. In the case 
of most of the bills introduced in a legislature no great 
harm ensues if the proposals of one house are rejected 
by the other ; matters merely remain where they were 
before. But in the matter of money bills the case is 
different : if no bill is passed for the raising and spend- 
ing of money the public service will come to a full stop. 
It therefore seems wiser to make the wishes of one 
house more or less decisive in the matter ; and of the 
two, the house more directly and proportionately repre- 
senting the people appears to be the natural one to in- 
trust with this power. The disability thus laid on the 
upper house in matters of finance varies in different legis- 
latures. It is most complete in the case of the British 
House of Lords. This body, by the custom of the constitu- 
tion, and in accordance with the Parliament Act of 1911, 
has no power to originate, amend, or reject a bill for the 
raising or spending of money. Other houses, as is the 
case with the House of Lords in Prussia, and the first 
chamber in the Netherlands, while forbidden to originate 
or amend money bills, are empowered to reject them en 
bloc. France offers a doubtful case; the senate is forbidden 
to originate measures of finance and has certainly power 
to reject them, but the question of its right to amend is a 
constitutional point not yet clearly settled. ^ The Senate 
of the United States represents a higher step in the as- 

^ Taswell-Lang-mead, Constitutional History, chap. vili. 
^ Lowell, Government and Parties; Simonet, Traiti EUmentaire du 
Droit Public. 



THE LEGISLATURE 171 

cending series of powers. " All bills for raising revenue," 
says the Constitution (art. i, § 7), " shall originate in 
the House of Representatives, but the Senate may pro- 
pose or concur with amendments as on other bills." In 
reality this amending power is used by the Senate with 
such latitude as to render the two houses in their legis- 
lative capacity what Mr. Bryce has called " reall}^ equal 
and coordinate." In a few cases, in the federal legisla- 
ture of the German Empire and in Switzerland, the two 
houses are legally on a footing of equality in regard 
to money bills. In Austria an ingenious expedient is 
added for preventing the disagreement of the two houses 
from stopping the wheels of government. It is part of 
the fundamental law that if the two houses, even after 
consultation, can reach no agreement in regard to a 
financial measure, then the lower sum of money voted 
(by either house) is considered as granted. 

In all matters other than money bills it is usual that 
the two houses are on a footing of equality as far as 
the law of the constitution is concerned. But in practice 
it generally happens that the lower house is decidedly 
the " predominant partner : " in the case of a conflict 
between the two, public opinion is generally in favor of 
the house which more immediately stands for the vote 
of the people, and circumscribes to a large extent the 
resistance that can be offered by the upper house to the 
more popular body. This is the explanation of the rel- 
atively feeble power of the senates of France, Italy, 
and Canada. The cases of the German Bundcsrath 
and the American Senate, which enjoy a ])owcr practi^ 
cally greater than that of the lower house, are quite 
exceptional. The Senate of the United States owes its 



172 THE STRUCTURE OF THE GOVERNMENT 

extensive power partly to its federal character, by virtue 
of whicli it represents the states in their separate ca- 
pacity, partly to the length of the senatorial term, and 
in part also to its historical antecedents, and the tra- 
ditions of political weight and stability which it has 
acquired. The constitutional relations existing by the 
custom of the country between the Lords and Commons 
of the United Kingdom are quite unique. It is only 
to be expected that the House of Lords, no part of 
which is elected by the people either directly or in- 
directly, should be able to offer only a limited resistance 
to the Commons even in matters that are not financial. 
The constitutional relation of the two houses, prior to 
recent developments, is thus stated by Mr. Dicey :^ 
" If there is a difference of opinion between the House 
of Lords and the House of Commons, the House of 
Lords ought at some point (not definitely fixed) to give 
way; and should the Peers not yield, and the House 
of Commons continue to enjoy the confidence of the 
country, it becomes the duty of the Crown, or of its 
responsible advisers, to create, or threaten to create, 
enough new Peers to override the opposition of the 
House of Lords, and thus restore harmony between the 
two branches of the legislature." By the " confidence 
of the country " is meant the endorsation of the conduct 
of the Commons, or more correctly of the majority in 
the Commons, by the people voting in a general election 
on the issue involved. This constitutional relation is 
sometimes briefly stated by saying that the Lords have 
no right to oppose the Commons on the issue on which 
the Commons were elected. The precedent involved was 
established by the passage of the Reform Bill of 1832. 

1 Law of the Constitution. 



THE LEGISLATURE 173 

The Lords insisted on opposing tlie measure even 
thouoch a dissolution of Parliament resulted in the elec- 
tion of a new House of Commons overwhelmingly in 
support of jDarliamentary reform. The written threat 
of the king (William IV) to create peers in favor of 
the bill, forced the Lords to withdraw their opposition. 
In accordance with this precedent the Lords have found 
themselves several times compelled to waive their legal 
right of resistance to the Commons. The bills for the 
repeal of the corn laws (1846) and for the disestablish- 
ment of the Irish Church (1869) are cases in point. 
That the precedent had not altogether shattered the 
constitutional power of the Lords was seen in their rejec- 
tion of Mr. Gladstone's Home Rule Bill (1893). In spite 
of the fact that they were opposing a House of Com- 
mons elected directly on the question of home rule, the 
Lords threw out the bill ; .it was argued in support of 
their action that though the electorate had spoken in 
favor of home rule, they had not indorsed this partic- 
ular bill, which had not yet been made public at the 
time of the election. A further argument was found in 
the fact that the bill had been forced through the 
Commons by means of the closure, which had perhaps 
unduly abbreviated debate. 

Within recent years the constitutional relation of the 
two houses of the British legislature has undergone a 
further readjustment. The House of Lords rejected 
the Finance Bill passed by the Commons in 1909. 
Certain portions of the bill, as notably, the introduction 
of a tax on the increase of landvalues, were regarded 
by the majority of the Lords as social rather than fin- 
ancial legislation and as subject therefore to the free 



174 THE STRUCTURE OF THE GOVERNMENT 

action of the House. The rejection of the bill led to a 
prolonged constitutional crisis which resulted in the 
passage of the Parliament Act of 1911 (1 and 2 Geo. 
V. Ch. 13). Under this statute any money bill which 
the House of Lords refuses to pass in the form in which 
it has come up from the Commons, may become law by 
the signification of the royal assent. The decision as 
to what is or what is not a money bill rests with the 
speaker of the House of Commons. Public bills other 
than money bills or a bill extending the maximum 
duration of parliament may also become law without 
the consent of the House of Lords, provided that they 
have been passed by the Commons in three successive 
sessions (of the same or of consecutive parliaments), 
and provided also that two years have elapsed between 
the second reading in the first session of the House of 
Commons and the third reading in the third session. 
The bills in question must be sent up to the House of 
Lords at least one month before the end of the session. 
The same act limits the duration of parliament to five 
years. 

Whatever arrangements may exist, either legal or 
customary, there always remains in the background the 
danger of conflict or even of an actual deadlock between 
the two houses. In most legislatures, as for instance in 
the Congress of the United States and in the Parlia- 
ment of the United Kingdom, this danger is lessened 
by the system of conferences between representatives 
of each house. In the Congress, when the houses are 
unable to agree over amendments, three members of 
the Senate are appointed to confer with three members 
of the House of Representatives, with a view to arran- 



THE LEGISLATURE 175 

ging a compromise. Although serious differences of 
opinion have often existed between the two houses of 
Congress, the possibility of an actual deadlock bringing 
the legislative machinery to a standstill is not one of 
the special dangers in the American system. Beyond 
the plan of committees of conference there is no legal 
machinery for forcing an agreement between the two 
houses. The case is quite different with the newly 
made constitution of the commonwealth of Australia. 
Australian legislatures, especially the legislatures of 
Victoria, have experienced the very serious dangers 
that may be threatened by the obstinate disagreement 
of the upper and lower house.^ As a result of the 
difficulties that have thus arisen, the new constitution 
of the commonwealth contains in consequence provi- 
sions that are intended to render impossible a complete 
deadlock in the federal legislature. The Governor 
General is empowered in the event of the House 
presenting and re-presenting a bill, and the Senate per- 
sistently rejecting it, to dissolve both houses simulta- 
neously. If after a new election the same situation 
persists, the governor may convene a joint sitting, the 
vote in which is final.- 

5. Direct Legislation; the Initiative and the 
Referendum. As a conclusion to our discussion of 
the legislature and the legislative process, we may 
briefly advert to what is called direct legislation, or the 
making of laws by means of tlie action of the people 
themselves. That the whole of the jieople, or at any 

^ For an account of the experience of Victoria in this connection, 
and the political crisis of 1877, see Edward Jenks, Government of ViC' 
toria, part iv, chap, xxxiii. 

* Commonwealth Act, § 57. 



176 THE STRUCTUKE OF THE GOVERNMENT 

rate of the voters, should participate in the process of 
legislation seems in a sense the embodiment of the idea 
of democratic self-government. Eousseau regarded it 
as the only true expression of popular sovereignty. In 
some form or other it has been known since the earliest 
historical times. At Athens there existed the Ecclesia^ 
an assembly of all the free citizens, erected by Solon 
in the sixth century B. C. into an organ of general po- 
litical control. In it the citizens decided on questions 
of peace and war, and voted on matters laid before 
them by the Council of Four Hundred. The Romans 
also had their Comitia Tributa^ or meeting of the peo- 
ple by tribes, which became in the latter days of the 
republic a lawmaking assembly. In the smaller can- 
tons of Switzerland the Landesgemeinde^ or gathering 
of the people, has acted from time immemorial as a 
legislative body. Such organs of government were ren- 
dered possible in the city states of the classical world, 
and in the cantons of Switzerland, by reason of their 
restricted territorial extent. In the larger states of the 
world an actual gathering of the people is a physical 
impossibility. The sovereignty of the people has worked 
itself out by means of representative assemblies. But 
at the present day the growth of rapid communication 
by post and telegraph renders it possible to have re- 
course to some extent to the whole body of the citizens 
in the making of the law ; the people of a great state 
cannot, it is true, be all gathered together in one place 
in a deliberative capacity, but it is possible for them all 
at one and the same time to give their vote upon any 
measure proposed. The system of direct legislation 
which is thus rendered possible has been favored by 



THE LEGISLATURE 177 

the growing distrust of representative legislatures which 
is noticed in so many democratic countries at the pre- 
sent day. There is an increasing tendency to rely on 
the general will of the whole people as expressed in 
a direct vote. " The people," says Professor Gold win 
Saiith, " cannot be lobbied, wheedled, or bulldozed ; 
the people is not in fear of its reelection if it throws 
out something supported by the Irish, the Prohibition- 
ist, or the Methodist vote." As against this contention 
it may properly be advanced that the making of laws 
requires, like every other task of importance, a special 
training and experience, and that the interests of the 
people are really safer in the hands of carefully chosen 
legislatures than when submitted to the hazards of 
a popular vote. The fact that in every community a 
large proportion of the citizens are of necessity too 
much absorbed in their own affairs to be able to prop- 
erly consider the public questions submitted to them, is 
also of considerable weight. Rightly or wrongly, how- 
ever, legislation by the people is already used to a con- 
siderable extent. It assumes several forms. Of these 
the most important is the referendum, or submission to 
the popular vote of a proposed measure or constitu- 
tional change which becomes law if ratified by the re- 
quired majorit3\ The initiative means the legal right 
of the people, acting by petition and in sufficient num- 
ber, to cause a legislative measure to be brought to a 
popular vote. There is finally what may best be called 
the plebiscite, or vote of the people used merely as an 
expression of opinion without binding force, and in- 
tended as a guide to the policy of the government. It 
is in Switzerland more than anywhere else that direct 



178 THE STRLXTURE OF THE GOVERNMEXT 

legislation is in use. Of the nineteen cantons and six 
half-cantons which form the federation, two cantons 
and four half-cantons still preserve the immemorial 
Landesgemeinde, or mass meeting, already referred to. 
In Uri, for example (of which the total population is 
22,055), the people meet once a year in a large meadow, 
where they vote taxes, pass laws, and elect their execu- 
tive officers for the coming year. Even in the cantons 
which have representative legislatures the referendum 

— the submission of the laws to the vote of the j^eople 

— is largely used. In about half of them it is " op- 
tional," employed, that is to say, only when called for 
by petition. In all the rest (except Freiburg) it is •' ob- 
ligatory," and must be used for all legislative measures 
of importance. In all the cantons changes in the con- 
stitution can only be made if ratified by the popular 
vote. The initiative, or right of the people to intro- 
duce laws by petition, is of more modern creation, hav- 
ing been first introduced into the constitutions of the 
cantons in the middle of the nineteenth century. It is 
permissible at present in all but three of the cantons 
for ordinary measures of law, and in all but one for 
constitutional changes. In the federal government of 
Switzerland the referendum is compulsory for an 
amendment of the constitution. There is also an op- 
tional referendum, requiring the submission of ordinary 
laws to the people if called for by thirty thousand citi- 
zens or eight cantons. The initiative in the shape of a 
proposal supported by fifty thousand voters also exists 
in the federal government; though nominally admissible 
only on constitutional amendments it can in practice be 
applied to any measure by giving it the form of a change 



1^1. aadLOer 
alar Totes v^er- 
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180 THE STRUCTURE OF THE GOVERNMENT 

a constitutional provision requiring certain kinds of 
statutes to be submitted to a popular vote. The con- 
stitution of Pennsylvania (1873), for example, declares 
that " no law changing the location of the capital of 
the State shall be valid until the same be submitted to 
the qualified electors of the commonwealth at a general 
election, and ratified and approved by them." ^ Simi- 
lar provisions in regard to altering the location of the 
capital are found in the constitution of many other 
states. In the same way a clause of the Iowa constitu- 
tion of 1846 (adopted later in the constitutions of New 
York, California, Illinois, and a number of western 
states) provides that laws for the contraction of debt 
(with certain exceptions) must be submitted to the 
people. In many states, too, the raising of taxes be- 
yond a stipulated limit can only be effected by means 
of a popular vote. Of other matters treated in this way 
the alienation of public property, the creation of banks, 
and the extension of the franchise to women may be 
cited. The popular votes by which female suffrage 
was rejected in South Dakota (1898), in Washington 
(1898), and in Oregon (1900) were of this nature. 
Direct legislation is also found in the form of a " muni- 
cipal referendum " in which the people of a county or 
town vote on the question of the location of the county 
seat, the contraction of a local debt, or the adoption of 
a city charter. This particular phase of direct leg- 
islation, whereby the making or amending of city 
charters is submitted to a vote of the people of the citj^, 
is sometimes spoken of as municipal home rule. Sev- 
eral states of the Union have already made extensive 
^ Constitution, art. iii, § 28. 



THE LEGISLATURE 180a 

use of this system. In California an amendment of the 
constitution (November, 1906) provided that a peti- 
tion of fifteen per cent of the voters can cause any 
proposed charter amendment to be submitted to a vote 
of the people. In Oregon a constitutional amendment 
of 1906 gave to the voters of every city and town 
power to enact and to amend the charters of their mun- 
icipality. The same development is seen in Washington, 
Minnesota, Colorado, and other states. The Michigan 
constitution of 1908 provides for municipal home rule. 

Side by side with this is the system of the advisory 
direct vote, now widely adopted as an auxiliary of city 
government. This vote is taken either by virtue of a 
general state law, or by virtue of the implied powers 
of a city charter, or under an enabling clause expressly 
inserted in a charter. Thus in Illinois a law of 1901 
provides that on the petition of twenty-five per cent of 
their number, an expression of opinion of all the voters 
shall be taken on any municipal question. Under this 
law expressions of opinion were taken in Chicago (1902) 
on the question of direct nomination of city officials, 
on the question (1904) of the popular election of the 
school board, and on other matters. The Canadian 
provinces of British Columbia and Ontario have 
adopted, in 1902 and 1903 respectively, this system of 
an advisory expression of opinion on the part of the 
voters of a city. 

Direct Legislation is carried still further in certain 
states of the Union in the form of a general introduc- 
tion of the initiative and the referendum. South Da- 
kota by a constitutional amendment of 1898 provided 
for the use of the initiative and the referendum on a 



180& THE STRUCTUKE OF THE GOVERNMENT 

petition of five per cent of the voters. Oregon adopted 
a state system of initiative and referendum in 1902, 
and by an amendment of the constitution in 1906 in- 
stituted also local direct legislation with the applica- 
tion of a local initiative at the request of fifteen per 
cent of the voters of a town or city, and a referendum 
at the request of ten per cent. Montana, Oklahoma 
(constitution of 1907), and other states have adopted 
direct legislation both in state and municipal form. 
The whole system is decidedly growing in favor, espe- 
cially in the western part of the Union, and profits by 
the distrust with which the state legislatures are often 
viewed by the people at large. Direct legislation has 
been widely endorsed in general terms by various polit- 
ical parties and associations, especially those of a rad- 
ical or progressive stamp, in many states. The Pop- 
ulist party in its national convention at St. Louis, in 
1896, expressed itself in favor of the use of both refer- 
endum and initiative, and has reasserted its advocacy 
of direct legislation at each of its subsequent conven- 
tions. Various state Democratic conventions, for exam- 
ple those held in Massachusetts, Rhode Island, and 
Nebraska in 1911, have put themselves on record in 
favor of the initiative and referendum. 

Somewhat similar in its general nature to the pro- 
gramme of direct legislation is the modification of the 
tenure of office by what is known as the recall. Ex- 
pressed in general terras this system means that all 
persons who hold office must do so only so long as 
their tenure of office is sanctioned by the will of the 
people; at any time when a majority of the voters de- 
sire it the office-holder is removed from his functions. 



THE LEGISLATURE 180c 

The arguraents for and against the system stand 
upon somewhat the same ground as those in regard to 
direct legislation. In idealistic terms, it is argued that 
the will of the people ought to be the supreme power 
and that the recall offers a means whereby the citi- 
zens may at once remove from office those who have 
abused their trust. The system, it is claimed, af- 
fords a ready weapon against political corruption and 
the sinister influence of the money power. To this it is 
answered, as in the case of direct legislation, that " the 
people " are neither all-wise nor all-seeing ; that the re* 
call of a conscientious official may be brought about 
by a false appeal to the passions or interests of voters 
ignorant of the facts and details of the case ; that the 
resulting uncertainty of office renders the conscientious 
performance of duty doubly difficult ; and that, far 
from being a protection against the malign influence 
of the money power, the recall introduces a new and 
dangerous form of public corruption. It is especially 
ia regard to the recall of judicial officials that stress is 
laid on these arguments. The work of a judge, from 
its intricate and technical character, is not a subject 
upon which the mass of the people can pronounce. 
Certainty of tenure alone can give to the judge the 
opportunity for independence of mind. 

As yet, the use of the recall, as a phase of the newer 
democracy, has not proceeded far. Its advocates some- 
times call attention to the dependence of the British 
and colonial cabinets, from day to day, on the vote of 
the lower house. But this is hardly a case in point, 
nor is it proper to cite the instance of the delegates of 
the Congress of the Confederation (1781-1789), who 



180d THE STRUCTURE OF THE GOVERNMENT 

were removable at will by their state governments. 
The recall, however, has been actually established in 
connection with the administration of cities in a num- 
ber of western states, as Iowa, Kansas, California, and 
Oklahoma. It is especially used in connection with 
the form of control known as commission government. 
The recall in the state of Oregon is extended to the 
judiciary. 

READINGS SUGGESTED 
Lecky, W. H., Democracy and Liberty (1896), vol. i, chap. iv. 
Low, S., Governance of England (1904). 
Bryce, J., American Commonwealth (1889), vol. i, chaps, i-xx. 

FURTHER AUTHORITIES 
The Statesman's Year Book (annual). 
Anson, Sir W., Law and Custom of the Constitution, part i (2d 

edition, 1896). 
Hart, A. B., Actual Government (1903). 
Lowell, A. L., Governments and Parties in Continental Europe 

(1897). 
Simonet, Traits El^mentaire de Droit Public et Administratif 

(3d edition, 1897). 
Dicey, A. V., Law of the Constitution (4th edition, 1893). 
Macy, J., English Constitution (1897). 
Wilson, W., The State (2d edition, 1901). 
Vincent, J. M., Government in Switzerland (1900). 
Wilson, W., Congressional Government (2d edition, 1901). 
DeploJge, S., The Referendum in Switzerland (translation, 1898), 
Ilbert, Sir Courtenay, Legislative Methods and Forms (1901). 
Munro, W. B. (editor). The Initiative, Referendum and Recall. 

(National Municipal League Series. 1912.) 



CHAPTER III 

THE EXECUTIVE 

1. Concentration of Authority the first Requisite of the Executive. -= 
2. Methods of Appointment ; Hereditary Executives. — 3. Elective 
Executives. — 4. Presidential and Parliamentary Government. — = 
5. Subordinate Officials of the Executive ; the Civil Service. 

1. Concentration of Authority the First Requi- 
site of the Executive. The term executive is used 
to designate those officers of the government whose 
business it is to " execute " or carry out the law of the 
land. In the narrower sense it often signifies merely 
the supreme head of the administration, as the Presi- 
dent of the United States, or the same person to- 
gether with his chief subordinates. Thus when we 
speak of the " executive " of the French Republic, we 
refer to the president, or perhaps to the president 
together with the prime minister and cabinet. But the 
word has also a voider signification, in which it means 
the entire staff of officials, high and low, who are con- 
cerned with the administration of public affairs. This 
does not, of course, include persons acting in a legisla- 
tive or judicial capacity, but comprises all such public 
servants as postmasters, revenue officers, sheriffs, in- 
spectors, commissioners, etc. Occasionally even the 
army and the navy are included in this usage of the 
term. In the following chapter the word executive will 
be used in the narrower sense except where otherwise 
indicated. 



182 THE STRUCTURE OF THE GOVERNMENT 

The first striking point to be noticed in connection 
with the executive heads of modern governments is 
that, while members of the legislature are many, the 
chief officers of the executive are few. This, as has 
been seen, arises from the fact that the prime need in 
the executive or acting branch of a government is 
promptness of decision and singleness of purpose. That 
this is difficult to obtain among a number of persons 
acting with equal authority goes without saying. " One 
bad general," the Emperor Napoleon once said, "is 
better than two good ones." 

It is further to be noted that to a very great ex- 
tent executive authority — either over the whole con- 
duct of government or over its subdivisions — tends 
to centre in a single person. Thus in the United 
States the supreme administration lies in the Presi- 
dent, whose chief subordinates are his own creations, 
and can be dismissed by him. In Great Britain the 
virtual control of affairs is in the hands of a cabinet 
of fifteen to twenty persons, one of whom is, to a 
large extent, dominant over the others. It is not ne- 
cessary that any single person should always impose 
his own ideas and his own will upon the conduct of 
public administration. But it is essential that there 
should be some one person who can in the last resort 
exercise a decisive and final authority. It is one of the 
admirable points in the federal Constitution of the 
United States that, by virtue of his position of com- 
mander-in-chief of the army and navy, the President 
may become in time of war almost a dictator. His 
power expands with the need of strengthening tlie 
executive, and he is able to cut the Gordian knot of 



THE EXECUTIVE 183 

legislative perplexities by the incisive application of a 
single will.^ 

It appears, then, that there is a strong presumption 
against what is called a " plural executive," or group 
of persons exercising the supreme executive authority, 
no one of whom is superior in power to the others. 
Such a body is able to act only by joint decision. At 
first sight there appears a decided gain in this system 
in the direction of maturity of judgment and mutual 
control of the members against any possible tyranny 
on the part of any of them. But the necessary loss in 
promptness of resolution and the danger of actual con- 
flict of opinion in a moment of crisis, more than offsets 
this gain. As a matter of fact a plural executive is 
scarcely able to act at all except by subdividing the 
work to be done and committing certain special func- 
tions to the care of each of its members. This was, for 
example, the plan pursued by the Committee of Public 
Safety, the joint executive of eleven members which 
governed France during the reign of terror, 1793-94.^ 
History offers many examples of plural executives, such 
as the dual kings at Sparta and the consuls at Rome. 
But experience has been decidedly unfavorable to such 
a plan of government. To this general verdict a signal 
exception is found in the case of modern Switzerland. 
Here the supreme executive power is vested in a boai-d 
of seven persons, the Bundesrath, or federal council, 
elected for a term of three years, by the two houses of 

1 Consult in this respect J. V/. Burg^ess, Political Science and Con- 
stitutional Law, vol. ii, division iii, chap. iv. 

^ For the division of executive husiness anions^ the nionibers of the 
Committee of Public Safety, see Morse Stephens, The French Revolu' 
tion, vol. ii. 



184 THE STRUCTURE OF THE GOVERNMENT 

the legislature in joint session. Although one of the 
council is nominated each year to the titular dignity of 
president of the Swiss Confederation, he is in no sense 
above the others in authority. The members act sever- 
ally as the heads of the seven governmental depart- 
ments, though this is for convenience only, and not 
prescribed by the constitution. In their corporate 
capacity they manage the general conduct of the ad- 
ministration. In practice the system works admirably. 
The members of the council are constantly reelected, 
and enjoy what is practically a permanent tenure. But 
this rather anomalous situation is partly to be explained 
by the fact that the legislature itself decides upon the 
policy to be pursued in all matters of moment. 

2. Methods of Appointment ; Hereditary Ex- 
ecutives. Returning, then, to the consideration of 
modern executives in general, and having noted the 
prevailing principle of single control, we may next in- 
dicate the great differences that exist in the method of 
selecting the executive heads of governments, in their 
tenure of office, and in the relations of the executive to 
the legislative body. Two separate lines of classifica- 
tion are here presented ; first the distinction between 
hereditary and appointed executives, and secondly the 
distinction between those that are real and those that 
are nominal. A hereditary executive — a king, empe- 
ror, sovereign prince, etc. — enjoys a tenure which is 
not only lifelong, but which passes to his heirs. Such 
an institution has of course no place among the polit- 
ical ideas current in the independent states of the 
American continent. Looked at in a purely rational 
light, it is difficult to find much to be said in its favor. 



THE EXECUTIVE 185 

A hereditary ruler seems on the face of things as 
absurd as the hereditary mathematician or hereditary 
poet-laureate referred to in the preceding chapter. But 
hereditary monarchy, as it exists in Europe, is not to 
be disposed of in so simple a manner. In nearly all 
countries where it exists, it is a historical product, and 
has grown up as a part of the political evolution of the 
state. In many cases, too, it is regarded by the people 
of the country, as most notably in Great Britain, not 
only with tolerance, but with the most sincere ap- 
proval. The desire for a republican form of govern- 
ment is about as little known in England as the desire 
for a monarchical system in the United States. But 
the real secret of the persistent survival of hereditary 
monarchy in so many of the civilized communities of the 
world lies in the fact that, in the cases where it meets 
with the greatest approval, the hereditary sovereign 
is a nominal and not a real executive.^ In the United 
Kingdom, Italy, Hungary, Belgium, etc., the actual 
conduct of government is not in the hands of the king. 
The king is, to a great extent, though of course not 
literally, only the nominal head of the state ; public 
business is transacted in his name, and professedly by 
his authority, but in reality the control of affairs is 
in the hands of the prime minister and cabinet, who 
represent the voice of the people. In this form the 
system can be supported by many arguments of great 
weight. It helps to lend to the government of the 
country those features of stability, permanence, and 

1 A very interesting discussion of tlie somewhat accidental develop- 
ment of the peculiar position held hy a " constitutional " sovereign is 
found in Sidney Low's Governance of England. 



186 THE STRUCTURE OF THE GOVERNMENT 

continuity which are among the most essential factors 
in political institutions. To international dealings it 
contributes, whether rightly or wrongly, a certain pres- 
tige that is not without its diplomatic value. It is cer- 
tainly, also, to be admitted that the traditions which 
surround a monarchy of long continuance help to in- 
spire the actual chiefs of the government with a sense 
of responsibility and dignity most salutary in its effect. 

In spite of all this it may perhaps be doubted 
whether the wonders of constitutional monarchy have 
not been somewhat overestimated by its English pane- 
gyrists. When all is said and done there always re- 
mains a contingent possibility that a future monarch 
may break rudely away from the self-effacement im- 
posed upon him by the system. The admirable man- 
ner in which Queen Victoria and her successors have 
filled the position of constitutional sovereign has made 
people forget that this self-effacement is customary, 
and not part of the law of the land. The relations 
thus established, especially in the connection of the 
sovereign with foreign affairs, are extemely delicate, 
and demand for their proper maintenance a high de- 
gree of tact on the part of the monarch. The success- 
ful operation of system is by no means so independent 
of the competence or incompetence, the integrity or 
perversity of the reigning prince as the English writers 
are inclined to imply. Whether or not such contingent 
disadvantages overbalance the features of stability 
and continuity that result from the institution of mon- 
archy is of course a subject admitting a great diversity 
of opinion. 

The hereditary monarchs of the present day are not 



THE EXECUTIVE 187 

all of the constitutional type. The king of Prussia 
(who by virtue of his kingship is also German em- 
peror) is an example to the contrary. Here the consti- 
tutional maxim that the kino^ "reions but does not 
govern " no longer holds true. The king of Prussia 
not only reigns but governs also/ and his executive 
function is both titular and actual. The kingship 
passes to his descendants. To the American mind it 
seems very difficult to defend such an institution. The 
defense on grounds of dynastic rights to the kingship 
as a sort of property, or on quasi-theological grounds as 
a thing specially instituted by the deity, hardly needs 
refutation. Any defense of such a monarchy on the 
grounds of its efficiency carries with it the assumption 
that the future sovereign in line of descent will of ne- 
cessity prove efficient. Nevertheless, German writers 
on public law are quite prepared to defend the exist- 
ence of monarchy even where not of the limited or 
constitutional type. 

3. Elective Executives. In contrast to hereditary 
executives may be placed the wide class of those that 
may best be termed elective. The terminology is here 
hardly satisfactory, for in addition to officials actually 
elected, such as the President of the United States, 
there exists a class of head executive officers who are 
certainly not hereditary, and who are rather to be 
tliought of as selected than elected. The word " nom- 
inated," or appointed, would indicate more precisely the 
method of their accession to office. Inasmuch, however, 

^ " With us the king- himself {governs ; the ministers of course form- 
ulate (redigiren) what the king- has commanded, but they do not 
govern." Speech of Prince Bismarck in the German Reichstag, 1882. 



188 THE STRUCTURE OF THE GOVERNMENT 

as such chief executives are found not in independent 
states, but in the subordinate governments of an im- 
perial system, it would seem improper to make on their 
account a third general category of the executive in 
general. Such officials as the Governor General of 
Canada, the Viceroy of India, and the governors of 
British colonies, all of whom are nominated by the 
crown, are of this description. The lieutenant-governors 
of the Canadian provinces, who are appointed by the 
Governor General, belong to the same class. These ex- 
ecutive officers will also be divided into those that are 
actual and those that are only nominal. The Viceroy 
of India is of the first sort ; the Canadian Governor 
Oeneral is of the second, and the lieutenant-governors 
represent only the thinnest kind of nominal power. 
Such executives are of course merely the outcome of 
the peculiar circumstances of the British empire, in 
which it is necessary to reproduce by proxy in the 
colonies and dependencies the nominal character of the 
power of the British sovereign. 

Most independent states that are not under a hered- 
itary monarch have at their head an elected executive 
chief. Between these two an intermediate form might 
be distinguished, a king elected for life out of a " reign- 
ing family." This form is often found in history, as for 
example in England at the time of the Norman conquest. 
It belongs to an age when the king was in the full sense 
of tlie term the " war lord," and when military prowess 
was so important in a ruler that the reign of a minor 
or a weakling was repugnant to the general sentiment 
of the nation. But among the elected executives of 
modern civilized states such a form no longer appears. 



THE EXECUTIVE 189 

The actual elected executives present a considerable 
diversity. They are almost all alike in that the supreme 
power, nominal or virtual, is vested in a single person, 
thouo'h even here the Swiss executive has been seen to 
be an exception. But apart from this many divergen- 
cies appear. In the first place the manner of election 
is various. The President of the United States is elected 
by an indirect election, which through the purely me- 
chanical nature of the electoral college has become 
practically direct. In France the president is elected 
by the two houses of the legislature sitting together as 
a '' national assembly." The governors of the se^^arate 
commonwealths of the United States are elected di- 
rectly by the people. The system of election varies among 
the republics of Central America and Southern Amer- 
ica. Some of them, as Mexico, the Argentine Republic, 
and Chili, choose their presidents by indirect election. 
In others, as for example, in Peru, in Brazil, and in 
Bolivia, the election is made directly by the people. 
Theoretically considered, the process of indirect election 
appears attractive. AVhile not inconsistent with the 
principle of popular sovereignty, it appears to put the 
actual choice of the executive head into the hands of 
a specially competent body. Practical experience, how- 
ever, is against the plan ; it is found either to convert 
itself into what is merely a needlessly cumbrous form 
of direct election, or else to lend itself to the intrigue 
and sinister influence of an inside ring. 

Another difficult problem presents itself in the mat- 
ter of the duration of the executive term of office and 
in the question of recligibility. In all democratic re- 
publican countries there is an instinctive repugnance 



190 THE STRUCTURE OF THE GOVERNMENT 

to long continuance in office, and a fear that an office 
thus held may transform itself into what is practically 
a monarchical tenure. In accordance with this idea the 
presidents of the different American republics hold 
office for terms varying from four to six years. For the 
same reason the outgoing president is in most of these 
cases not eligible for the succeeding term. Mexico, in 
which the president is not only reeligible after his four 
years in office, but has in fact been continuously in 
office from 1884 until 1906, is here an exception. In 
the United States the law of the Constitution does not 
prohibit reelection. But public opinion has confirmed 
the precedent first set by Washington, and forbids the 
election of the President for a third term. That such a 
rule was a salutary precaution at the inception of the 
republic was doubtless true. At the close of the eight- 
eenth century, a republic covering any considerable 
territorial extent was regarded as an experimental de- 
parture in political institutions.^ It was consequently 
well worth while to make special sacrifices to avert the 
possibility of the subversion of republican institutions 
by the too great dominance of a single person. The 
example of Napoleon Bonaparte, who found means to 
convert his consulship for ten years into a consulship 
for life, and then into an imperial rule, illustrates the 
dan(Ter which Washins^ton and his immediate successors 
were anxious to avoid. But it may well be doubted 
whether at the present time, and in a country in which 

1 Montesquieu {Esprit des Lois, 1748, bk. viii, chap, xvi) says: 
" II est de la nature d'une r^publique qu'elle n'ait qu'un petit territoire : 
eanscela elle ne peutg-u^re subsister." The reflections which follow on 
the political dangers of a larg-e republic are especially interesting-. See 
also Rousseau's Social Contract. 



THE EXECUTIVE 191 

republican institutions have been consolidated by a 
hundred years of political growth, such a customary 
regulation has not become an anachronism. It deprives 
the country of the services of its greatest political leader 
at the very time when his matured experience has es- 
pecially fitted him for his post. Certainly in England 
such a compulsory retirement of men like Gladstone, 
Beaconsfield, and Salisbury at the very zenith of their 
political career would be considered a national loss. In 
France the president is elected for seven years and is 
reeligible ; but it must be remembered that in this in- 
stance the president is not the governing executive but 
only the nominal head of the state. The French repub- 
lic is a parliamentary republic, and the executive power 
is in reality held by the prime minister and his cab- 
inet. 

4. Presidential and Parliamentary Govern- 
ment. From what has been said it will be seen that 
the divisions of executive into hereditary and elective, 
nominal and actual, lie crosswise of each other. A 
hereditary sovereign may be nominal, as in the case of 
the British king, or he may be an actual ruler, as is the 
king of Prussia. Similarly an elected executive such as 
the President of the United States is actual, while the 
president of the French Republic is only nominal. 
The distinction between nominal and Anrtual executives 
leads to the consideration of the most fundamental of 
all questions In regard to the executive, namely. Its 
connection with the legislature. This has already been 
referred to In discussing the separation of powers, but 
some further treatment Is here necessary. The govern- 
ments of modern states are divided between two rival 



192 THE STKUCTURE OF THE GOVERNMENT 

systems of operation. Of these the one is commonly 
termed "parliamentary," "responsible," or "cabinet" 
government ; the other, for which no satisfactory 
designation can be found, has been variously styled 
" non-responsible," " presidential," or " congressional" 
government. In a parliamentary government the tenure 
of office of the virtual executive is dependent on the 
will of the legislature ; in a presidential government 
the tenure of office of the executive is independent 
of the will of the legislature. Parliamentary govern- 
ment is always found in connection with the presence 
of a nominal executive. But it is to be remembered 
that this nominal executive need not be a hereditary 
titular sovereign. In France the government is parlia- 
mentary, but the nominal head of the state is an elected 
officer. Similarly the presidential system is always 
found in connection with a real or virtual executive ; 
but this real executive need not be an elected presi- 
dent, as the instance of Prussia clearly shows. It thus 
seems that the word presidential is somewhat a mis- 
nomer, since a presidential government may not have 
a president, and a country which has a president need 
not have a presidential government. Unfortunately, 
however, no more adequate terminology can be found; 
" non-responsible " carries with it an entirely false con- 
notation, and " congressional " has already another 
signification in allusion to the Congress of the United 
States. 

The principle of parliamentary government is best 
understood by studying the evolution and operation of 
the British cabinet. The king of England was never 
without a group of councilors and chief officers to aid 



THE EXECUTIVE 193 

him in the conduct of the government. These advisers, 
known in Norman times as the King's Ordinary or 
Permanent Council, and from the time of Henry VI 
as the Privy Council, were men of the king's own 
choice. They were the king's "ministers" in the lit- 
eral sense of the term. Nor were they, for centuries 
after the consolidation of consultative assemblies into a 
national Parliament (1295), controlled by the legisla- 
ture, except by the heroic remedy of impeachment. 
They were rather the natural antagonists of the Parlia* 
ment than its chosen representatives. This is particu- 
larly seen during the tyranny of the Stuarts, where 
Sir Thomas Went worth's desertion of the popular 
cause elevated him to the position of a minister of the 
crown. Moreover, the group of ministers who formed 
the king's council constantly showed a tendency to 
unduly increase in numbers. This led to the concen- 
tration of power in the hands of an inner circle, to 
whom the name " cabinet " came to be applied. The 
overthrow of the Stuarts and the recognition of the 
principle of the supremacy of Parliament by the Bill 
of Rights (and later by the Act of Settlement) ren- 
dered the previous relation of ministers and Parliament 
no longer possible. As a means of conducting the 
executive government with the support of the members 
of Parliament, William III, acting on the advice of the 
Earl of Sunderland, deliberately chose his ministers 
from the ranks of the party dominant in the Commons. 
This, if ever one may speak with propriety of a politi- 
cal invention, was the invention of the cabinet sys- 
tem of government. Yet the system thus instituted 
remained for nearly a century in a rudimentary and 



194 THE STRUCTURE OF THE GOVERNMENT 

imperfect state. The ministers did not at first feel 
called upon to resign on the loss of parliamentary 
support. They prefered to wait, as did William's min- 
istry in 1698, for the adverse majority to *' blow over." 
Nor did the ministry throughout the first half of the 
eighteenth century resign or enter office as a body. 
Lord Rockingham's cabinet of 1765 may be looked 
upon as the first set of ministers coming into office as 
a body. Even till the end of the century the ministers, 
though they might belong to the same party, were not 
of necessity united in policy or harmonious in their 
political relations with one another. Pitt's insistence 
on the resignation of his refractory chancellor Lord 
Thurlow (1792) marks the recognition of this stage 
of cabinet evolution ; the refusal of the ministers of 
George IV to give him individual advice in reference 
to a matter of foreign policy indicates its final adoption.^ 
Taking the cabinet as it now exists, it may be said 
to operate on the following plan : It consists of a group 
of from fifteen to twenty men, who, though not legally 
a corporate unit, have in practice a united policy and 
a united responsibility. Each of them is a member of 
the legislature, either of the Lords or of the Commons. 
They are nominated by the crown, acting on the ad- 
vice of one of their number whom the king has 
first selected to be the prime minister. They belong to 
the political party or coalition of parties which com- 
mands the support of the House of Commons. Should 
they lose that support they resign collectively. In the 

1 The development of cabinet g-overnment in Great Britain is traced 
in Hearn, Government of England. See also C. Ransome, Rise of Conr 
stitutional Government. 



THE EXECUTIVE 195 

United Kingdom the whole of this arrangement is cus- 
tomary, and not legal. But such need not be the case. 
In France, for example, it is part of the law of the 
constitution ^ that " the ministers are collectively re- 
sponsible to the chambers for the general policy of the 
government." This is held to mean that they must 
resign if no longer supported by the Chamber of 
Deputies.^ 

To this relation thus existing between the French or 
British executive and legislature, the presidential sys- 
tem as seen in the United States or Germany stands 
in complete contrast. In the United States, for in- 
stance, the President, who is the actual executive, is 
elected independently of the legislature, for a term of 
years prescribed by the Constitution. Except by the 
process of impeachment, the legislature cannot shorten 
his term in office. Nor can the legislature dictate to 
the President the political or administrative policy to 
be followed, nor control it in any direct legal way, 
excepting in so far as the Senate has a veto upon the 
making of appointments and treaties. Moreover, the 
members of the President's " cabinet," as the group of 
executive officers who are at the head of the different 
departments is commonly called, are appointed by the 
President himself. There is no obligation upon him to 
consult the wishes of the legislature in selecting them. 
Nor can the legislature, except in the last resort, by 
impeachment, force tlie dismissal of members of the 
cabinet. The President, on the other hand, can appoint 

^ Loi Constitutlonelle, Feb. 2~>, 1S75, art. G. 

^ The extent of the power of the French Senate to force a ministry 
out of office is a doubtful constitutional point. Dupriez, Les Minisiref 
dans les Principaux Pays cV Europe, vol. ii. 



196 THE STRUCTURE OF THE GOVERNMENT 

and dismiss them at will. Similarly in Germany, tlie 
emperor has an actual executive power. His official 
acts, indeed, require the countersignature of his chan- 
cellor, but the latter is an officer of his own creation, 
holding office during the emperor's pleasure.^ There 
is no power on the part of the legislature, by an ad- 
verse vote or otherwise, to force the resignation of the 
chancellor. The same relation is found in the govern- 
ment of the kingdom of Prussia. 

The above illustrations show what different purposes 
parliamentary and presidential government may be 
made to serve. In Prussia presidential government 
permits of the existence of a national legislature, the 
lower house of which is democratic, without putting an 
end to the dominant power of the crown. In Great 
Britain parliamentary government has afforded a means 
of compromise whereby the monarch retains his nomi- 
nal position as the controlling authority, while in 
reality the centre of power has been shifted to the 
elected representatives of the people. In France and 
the United States, on the other hand, the parliamentary 
and the presidential systems have been each deliberately 
adopted as the best means of putting into practice the 
doctrine of popular sovereignty^ 

It is impossible here to institute a detailed criticism 
of the merits of the two systems. In England the par- 
liamentary system plaj^s a specially useful part in en- 
abling the government to be converted into a democracy 
without breaking with the historical position of the 

^ The immediate assistants of the imperial chancellor at the head 
of the different departments are not his colleagues, but his subordi- 
nates in the strict sense of the term. 



THE EXECUTIVE 197 

crown. The same purpose has been effected by imitation 
in Italy, Spain, and other countries. The king of Sar- 
dinia was accepted as ruler by the other states which 
were joined into a united Italy (1859-70) by virtue of 
the fact that the governing power would lie with the 
representatives of the nation at large. If the gradual 
abolition of monarchy is to be part of the political evo- 
lution of the future, it will prove to have been effected 
by means of the parliamentary system. In spite of all 
that has been said in its favor, the system is not without 
its drawbacks. It works evenly and well where two 
great political parties exist, which alternately hold the 
power of government and of which each is gradually 
forced to give place to the other. But where not one 
but many parties exist (as in France and Italy at the 
present day), loose in cohesion, and constantly forming 
and reforming into new coalitions, it introduces a dan- 
gerous element of instability into national government, 
and leads to the sacrifice of principle for the sake of 
power. On the other hand the presidential system has 
very decided disadvantages. The office of chief execu- 
tive becomes of so great importance that the recurrent 
election of the president occasions periods of great ex- 
citement and upheaval, always unfavorable to industrial 
activity and in turbulent countries fraught with possi- 
bilities of revolution. Moreover, apart from the artificial 
junction effected by party ties, the system may place the 
executive and the legislature in dangerous antagonism. 
5. Subordinate Ofl&cials and the Executive; the 
Civil Service. It has been said at the opening of 
the chapter that the term executive signifies sometimes 
the single head of the state, sometimes the head of 



198 THE STRUCTURE OF THE GOVERNMENT 

the state together with his chief associates or subordi- 
nates, and at times the entire force of executive officers, 
high and low. The subdivisions of the executive gov- 
ernment and the relations of its parts among them- 
selves must consequently be separately considered. A 
distinction may here be at once made between executive 
bodies that are of the nature of a hierarchy, radiating 
from a common source, and those that may be spoken 
of as coordinate. In a purely hierarchical executive 
the whole staff of executive officers are appointed either 
directly or indirectly by the chief executive. Of this 
type is the government of the United Kingdom, in 
which appointments flow from the crown, and the 
federal government of the United States, whose officers 
are appointed either directly by the President or indi- 
rectly by a person or persons nominated by the Presi- 
dent. The same is true in general of the executive 
officers of most independent states. On the other hand 
the commonwealths of the American Union have co- 
ordinate executives. Here the appointing power of the 
chief officer of the government (the state governor) is 
very limited ; the majority of executive officers are 
elected to their positions by the people. This is true 
even of the chief officials associated with the gov- 
ernor, — the lieutenant-governor, the secretary of state, 
the treasurer, the attorney-general, superintendent of 
education, auditor, comptroller, etc. But a body of this 
sort is still properly to be regarded as a unit and not 
as a plural executive, since the whole staff of officials 
is under the supervision and to some extent under the 
control (sometimes by power of dismissal) of the execu- 
tive head of the government. Moreover, the depart- 



THE EXECUTIVE 199 

mental heads each exercise a single and not a collective 
authorit3^ The contrast between a coordinate executive 
and a hierarchical is extreme. The former works well 
enough in the subordinate governments of a federal 
system ; in these, especially where there is an elaborate 
written constitution, executive duties are precise and 
there is but little latitude for general policy. But in a 
national government the case is different ; here there 
is need for a central power of great authority, exercis- 
ing a large amount of administrative discretion and 
able to rely on the vigorous cooperation of harmonious 
subordinates. The unity of purpose required to meet a 
sudden and serious national emergency could hardly 
be found in a cabinet of executive officers elected singly 
and separately by the people. 

In all governments, even though there may exist one 
person of supreme executive power, it is necessary to 
divide up the practical conduct of the administration 
into a number of departments. The division adopted 
in four of the leading governments of the world is 
shown in illustrative form in the table at the end of 
the present chapter. It will be seen that certain great 
departments of business — the management of foreign 
affairs, of the army, of the navy, and of the finances — 
are common to all. The American Secretary of State 
corresponds rouglily to what is elsewhere called the 
Secretary or Minister of Foreign Affairs. The names 
of most of the remaining cabinet officers indicate ap- 
proximately the functions to be ])erformed. In addi- 
tion to the usual officers, each country finds it necessary 
to establish certain sp(uaal departments to correspond 
to its peculiar needs. The office of the British Colonial 



200 THE STRUCTURE OF THE GOVERNMENT 

Secretary and that of the Secretary for India are ex- 
amples of this. In " parliamentary " governments, too, 
it is found useful to include in the cabinet group 
several officers who have either no departmental duties 
or duties of only a nominal character, and are thus 
free to aid in the general political control. In Great 
Britain this is effected by means of sinecure offices 
almost free from actual administrative duties, such 
as the positions of the First Lord of the Treasury 
(generally held by the Premier), the Lord Privy Seal, 
the Chancellor of the Duchy of Lancaster, etc. In 
Italy, Canada, and other places, the practice is adopted 
of admitting to the cabinet ministers " without port- 
folio." 

Below these heads of departments comes the general 
body of executive officers that form what is called the 
civil service. The relation of the members of the civil 
service to the heads of the government, their appoint- 
ment, dismissal, and tenure of office, is one of the dif- 
ficult problems of present politics. It will be well, 
therefore, briefly to indicate the existing status and 
regulation of the civil service in Great Britain and the 
United States. The case of Great Britain may best be 
discussed first. 

The British civil service comprises a staff of about 
80,000 officials. This includes the officers of the royal 
household, a large number of officials connected with 
the foreign, home, and colonial offices, the admiralty, 
the treasury, etc., officials serving under the local gov- 
ernment board, the patent office, the emigration office, 
the diplomatic and consular corps, collectors of customs 
and excise, postmasters, etc. The fundamental prin- 



THE EXECUTIVE 201 

ciple in the conduct of the service thus constituted is 
permanence in office, and the dissociation of tenure of 
office from the changes of government caused by the 
cabinet system. The only officers of a political com- 
plexion are the heads of the departments, together with 
certain chief secretaries and assistants who are known 
collectively as the ministry, and who number in all 
about fifty persons. Thus, for example, the Home 
Secretary (principal secretary of state for home affairs) 
has as his subordinate a '' parliamentary under-secre- 
tary," who, like himself, is a member of the ministry, 
and resigns office on the defeat of the government. He 
has also a '' permanent under-secretary," who is not a 
political officer, and who is at the head of the standing 
staff of clerks, superintendents, inspectors, and other 
officials of the department. A similar plan, though the 
official titles vary. Is in use in the Foreign Office, Colo- 
nial Office, India Office, War Office, the Admiralty, the 
Treasury, the Board of Trade, the Local Government 
Board, and the Post Office. The permanent tenure of 
office contributes greatly to the efficiency and integrity 
of the British civil service. Its origin is to be traced 
to the fact that in earlier times public office In England 
was a species of real property held by the incumbent 
for life or In fee. There still exist in the British civil 
service a few offices which are held, like the judicial 
positions, for life or good conduct. In the case of the 
great majority of official positions in the civil service 
the crown retains the right of dismissal. This right is 
exercised, however, only in cases of incompetence or 
dereliction of duty, and never for political reasons 
or to make room for a necessitous office-seeker. For 



202 THE STRUCTURE OF THE GOVERNMENT 

entry into the service use is made, in most of the 
British departments, of the principle of open competi- 
tion. 

In the United States the method of appointment and 
dismissal in the executive branch of the federal govern- 
ment has proved a matter of serious national concern. 
A very few of its officers hold their posts, as do the 
federal judiciary, on a life tenure. Some offices, as, 
for example, the cabinet positions, are held during 
the pleasure of the President. But in the case of the 
great majority of positions, the appointment is made 
for a stated term of years, usually four. In the actual 
operation of the government, the difficulty centres 
around the questions of dismissal from office and re- 
appointment at the expiration of the statutory term. 
It is clearly to be desired that competent officials should 
be left undisturbed in their positions, whatever be their 
political opinions. Particularly is this the case with 
such positions as those in the customs service, the 
postal service, etc.^ where the duties to be performed 
are of a more or less routine nature, and cannot be said 
to depend for their proper performance on harmony of 
political opinion between the head of the department 
and his subordinates. On the other hand, there is 
always the fear that the too great certainty of continu- 
ance in office may lead to official stagnation and a 
perfunctory discharge of duty. The federal Constitu- 
tion is not explicit on the subject of dismissal from 
office. The extent of the right of dismissal is reached 
by inference from the constitutional provisions in 
regard to appointment, and from the obvious exigencies 
of the case. The power of appointment in the case of 



THE EXECUTIVE 203 

ambassadors, other public ministers and consuls, and 
judges of the Supreme Court, lies with the President, 
subject to ratification by the Senate ; but " the Con- 
gress may by law vest the appointment of such inferior 
officers as they think proper in the President alone, or 
in the courts of law, or in the heads of departments." ^ 
Following the decision of the courts, the power of dis- 
missal is incident to the power of appointment. Con- 
gress, it is true, during its conflict with President 
Johnson, undertook to limit the executive power of 
removal by passing the Tenure of Office acts (1867 and 
1869), which called for the Senate's ratification of 
removal. The repeal of these acts (1887) put the 
matter on the same constitutional footing as before. 

During the first thirty years of the history of the 
Union the power of dismissal was not used as a means 
of finding positions for party adherents. Nearly all the 
federal officials held office during the pleasure of the 
executive, and dismissal, except for cause, was not con- 
templated. Madison spoke of it as unconstitutional. 
The act of 1820, prescribing a four years' term of office 
(still subject to removal at will) for collectors of cus- 
toms and many other federal officers, offered a starting- 
point for a new system. With the advent of President 
Jackson (1829) was inaugurated the " spoils system." 
Wholesale removals from office were made,^ and the 
places thus made vacant became the prizes of the Presi- 
dent's political followers. This disastrous precedent 
thus established was followed by later administrations, 

^ Constitution, art. ii, § 2. 

2 In the first twelve months of his presidency, Jackson made 734 re- 
movals from federal offices. 



204 THE STRUCTUKE OF THE GOVERNMENT 

until the " clean sweep " of offices became a recurrent 
feature of American politics. Not the worst feature of 
the system has been the frequent incompetence of the 
persons appointed for political reasons to the vacant 
offices. 

The obvious injustice of the " spoils system " and the 
inefficiency thereby occasioned in the public service 
led to a movement in favor of civil service reform, 
which culminated in the Civil Service Act of 1883. The 
purpose of this act is to separate as far as possible the 
civil service from politics, and to introduce the system, 
of appointments by merit based on competitive exam- 
inations. The act establishes a body of three commis- 
sioners whose duty it is, at the request of the President, 
to aid him in drawing up rules directed towards the 
following objects; that open competitive examina- 
tions shall be held in all branches of the civil service 
when classified for the purpose, and that appointments 
to office shall be made from those applicants graded 
highest ; that appointments at Washington shall be 
apportioned among the states according to population ; 
that no person in the public service shall be under ob- 
ligation to contribute to any political fund, nor shall 
any person in the public service use his authority to 
coerce the political action of any other person. The act 
does not call for the classification of persons appointed 
by the President and ratified by the Senate, nor of 
those employed merely as lalborers. There are also a 
large number of positions which are, for various reasons, 
excepted from the rules. Of the 370,000 posts in the 
executive civil service in 1910, 234,940 were subject 
to the competitive system, It is evident that where 



THE EXECUTIVE 205 

new appointments can be made only on a basis of 
certified fitness, the tendency deliberately to create 
vacancies will diminish, and competent officials will 
invariably be retained in office. Not the least merit of 
the Civil Service Act is that it helps to educate opin- 
ion. It is only by the growth of a vigorous public feel- 
ing in condemnation of the spoils system that the evil 
can be eradicated. 

READINGS SUGGESTED 

Bodley, J. E. C, France (1898), vol. i, bk. ii, chap, ii (The Chief 

of the State). 
Lowell, A. L,, Governments and Parties in Continental Europe 

(1897), vol. i, chap. ii. 
Dupriez, Les Ministres dans les Principaux Pays d'Europe, et 

d'Amdrique (1892), vol. i, part v, vol. ii, part vi. 
Burgess, J. W., Political Science and Constitutional Law (1898), 

part ii, Lk. iii, division iii, chap, iii, pp. 216-263. 

FURTHER AUTHORITIES 

Burgess, J. TV., Political Science and Constitutional Law (1898), 

vol. ii. 
Low, S., Governance of England (1904). 
Hart, A. B., Actual Government (1903). 
Ransome, C, Rise of Constitutional Government in England 

(1883). 
Montesquieu, Esprit des Lois (1748). 
Moran, T. F., The English Government (1903). 
Anson, Sir W., The Law and Custom of the Constitution, part i 

(1896). 
Ridges, E. W., Constitutional Law of England (1905). 
Stanwood, E., History of the Presidency (1901). 
Reports of United States Civil Service Commission. 
Ford, H. L., Rise and Growth of American Politics (1900). 



206 THE STKUCTURE OF THE GOVERNMENT 



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CHAPTER IV 

THE JUDICIARY AND THE ELECTORATE 

1. The Judicial Office and its Tenure. — 2. The Relation of the Courts 
to the Executive and to the Legislature. — 3. Administrative Law 
and Administrative Courts. — 4. The Electorate : Evolution of So- 
called Universal Suffrage ; the Present Suffrage in Leading Coun- 
tries. — 5. Criticism of Existing Systems ; the Case of Women, of 
Negroes, etc. — 6. Representation of Minorities. 

1. The Judicial Office and its Tenure. The judi- 
cial branch of the government, though less numerous 
than the executive (in its wider sense), occupies a posi- 
tion no less important in the organization of the state. 
The prime function of the judiciary, performed in all 
states, is to decide upon the application of the existing 
law in individual cases. The essential requisite in a 
judge is consequently an exact knowledge of the law. 
The work of the judiciary is thus a highly technical 
function, demanding for its proper accomplishment 
the trained intellect of a specialist. Whether the law is 
right or wrong, just or unjust, is a secondary matter : 
the duty of the judge is to adjudicate upon the law as 
it is, and not upon the law as it ought to be. It is far 
better that a bad law should work injustice in an indi- 
vidual instance than that a judge by deliberately re- 
fusing to recognize it should impair the principle of 
law itself. 

In actual fact, however, judicial decisions are far 
more than merely declaratory in their nature; they 



208 THE STRUCTURE OF THE GOVERNMENT 

contain a constructive element and serve to expand the 
existing law into a more and more detailed interpreta- 
tion. For no statute can be so minute in its provisions 
as to contemplate all possible cases, and to admit al- 
v^^ays of only one construction. Where the letter of 
the law is silent, the judge is called upon to attach to 
it the meaning which may be considered " reasonable," 
that is to say, which is consistent with the general 
principles of morality and public policy. In countries 
such as England and the United States this principle 
is carried very far ; for here the decisions once given 
are viewed as precedents for future ones. Such pre- 
cedents are not, of course, absolutely binding, but the 
presumption, where identity of circumstances can be 
established, is vastly in their favor. The process of 
adjudication thus amounts to a supplemental form of 
legislation, and a large part of existing law is said to 
be " made " by the judges. 

The nature of judicial functions, viewed in this light, 
clearly demands that the judiciary must be as impartial 
as is humanly possible. Not only must their own pe- 
cuniary interests be unaffected by the legal decisions 
given by them, but they must be removed entirely from 
the play of political interests. It is for this reason that in 
a well-ordered government the judiciary should be ade- 
quately paid by a compensation not affected by the num- 
ber and nature of their decisions, and should enjoy per- 
manent tenure of office and be independent of the good 
will or ill will of the other branches of the government. 
This object is adequately effected in the national gov- 
ernment of the United States ; the Constitution (art. iii, 
§ 1) prescribes that " the judges, both of the supreme 



THE JUDICIARY AND THE ELECTORATE 209 

and the inferior courts, shall hold their offices during 
good behavior, and shall, at stated times, receive for 
their services a compensation which shall not be dimin- 
ished during their continuance in office." ^ The same 
is true in the case of Great Britain. The English 
judges until the close of the seventeenth century held 
their office at the pleasure of the crown, a position ob- 
viously inconsistent with impartiality. The Act of Set- 
tlement (1701) declares that " judges' commissions shall 
be quamdiu se hene gesserint^ and their salaries as- 
certained and established." Removal can only be made 
" upon the address of both houses of Parliament." ^ The 
position of the judiciary thus established has never 
been altered. The system has also been adopted in the 
British colonies. The permanent and independent tenure 
of the judges thus secured in the United States and in 
the British Empire, and found also in France, Prussia, 
and other leading countries is unfortunately not uni- 
versal. The commonwealths of the United States are a 
notable exception. In many of these a false conception 
of the principle of popular sovereignty, and the vicious 
influence of the doctrine of " rotation in office " has led 
to the election of the judges by the people for a stated 
term of years. In some states, it is true, the judges are 
nominated by the governor or elected by the legislature ; 
in some also they hold office during good behavior. 
But the majority of judicial positions in the state gov- 
ernments are held by election for a stated term, often 

^ This does not hold g-ood of territorial judges, whose term of office 
is fixed at four years. 

2 Anson describes this as a tenure " as reg'ards tlie crown during- good 
behavior, as regards Parliament at pleasure." It is practically a per- 
manent tenure. 



210 THE STRUCTURE OF THE GOVERNMENT 

as short as two years. Such an institution cannot be 
too strongly condemned. It exposes the judges to the 
influence of political and personal motives in their con- 
duct on the bench, impairs the impartiality of their 
decisions, and inevitably lowers the character of the 
judicial body. 

2. The Relation of the Courts to the Executive 
and to the Legislature. Certainty of tenure and of 
compensation guarantee the judiciary against being 
unduly controlled by the other branches of the govern- 
ment. The question next arises, whether and to what 
extent the officers of the legislative and executive 
departments are to be protected from the power of 
the judiciary. That their original appointment or elec- 
tion is not made by the judiciary goes without saying. 
But it must be further decided whether, while they are 
in office, the legality of their official acts is to be sub- 
ject to the decision of the courts. Shall the judges have 
power to decide whether the legislature or the execu- 
tive, or any part of the executive, has acted in excess of 
its lawful power? To an American unacquainted with 
foreign governments, the answer seems self-evident, 
for the principle of limited constitutional powers and 
responsibility before the courts lies at the basis of the 
American system. But on this most important point of 
public law, the usage of modern states is divided between 
two sharply contrasted systems. In the United States, 
the Latin- American Republics, Great Britain and her 
colonies, the officers of the government are responsible 
before the law courts. The complete legal immunity of 
the British sovereign, and the immunity (except by im- 
peachment) of the President of the United States, are 



THE JUDICIARY AND THE ELECTORATE 211 

exceptions of a special nature which need not be con- 
sidered in this connection. On the other hand, it is the 
prevalent usage in the continental countries of Europe 
that the ordinary courts of law have no power to ques- 
tion the legality or decide as to the constitutionality 
of the official actions of the legislative and executive 
officers. A closer consideration of the consequences of 
these antagonistic principles will show how greatly the 
relations of the government to the indi^ddual citizens 
are affected thereby. 

The case of the British Empire is less complicated 
and may be treated first. In the United Kingdom every 
servant of the state (except the king) is responsible 
for his actions to the ordinary courts of law. " Every 
official," says Mr. Dicey/ "from the Prime Minister 
down to a constable or a collector of taxes, is under the 
same responsibility for every act done without legal 
justification as any other citizen. The Eeports abound 
with cases in which officials have been brought before 
the courts, and made, in their personal capacity, liable 
to punisliment or to the payment of damages for acts 
done in their official character but in excess of their law- 
ful authority." Not only the members of the executive 
civil service, but the officers and men of the army are 
individually liable before the ordinary tribunals for any 
unlawful acts, even if performed at the command of a 
superior officer. " The position of a soklier," says the 
same authority, " may be, both in theory and practice, a 
difficult one. He may, as it has l)een well said, be liable 
to be shot by a court-martial if he disobeys an order, 
and to be hanged by a judge and jury if he obeys it." 
1 Law of the Constitution, chap. vi. 



212 THE STRUCTURE OF THE GOVERNMENT 

In spite of the apparent anomaly involved in the last 
instance, the protection afforded to individual liberty 
by this res^Donsibility of executive officers cannot be 
overestimated. In the case of the British legislature 
there cannot, of course, be any such thing as a statute 
made in excess of power. For since the Parliament 
(used here in its legal sense of King, Lords, and Com- 
mons) is supreme, every statute that it makes is legally 
a good statute and cannot be questioned by the courts. 
But the legislative enactments of any minor body 
(such as a county council) are always subject to be 
passed upon by the courts, and perhaps set aside oq 
grounds of illegality. 

It is in such countries as the United States that the 
principle of judicial decision on the validity of the ac- 
tions of the government has the greatest consequences. 
Here, as in England, the officers of the executive 
are responsible to the courts for their official actions. 
But this is by no means all. For since the national 
and state legislatures are given by the Constitution 
only a certain definite and limited power, it becomes 
the duty of the courts to decide whether or not the 
legislature in the making of any statute has confined 
itself to the powers it legally possesses. Where such 
is not the case the court (though it cannot abolish or 
amend the statute itself) can refuse to apply it in the 
individual case before it, which is in practice equivalent 
to declaring the statute invalid. Americans are apt to 
regard this power of the courts as a necessary conse- 
quence of a written constitution. For how else, it might 
be asked, can the legislature and the executive be duly 
confined to the power granted them ? Logical as this 



THE JUDICIARY AND THE ELECTORATE 213 

seems, it remains true, as will presently be shown in 
the cases of France and Germany, that the existence 
of a written constitution is not always accompanied by 
this re\4sional power of the ordinary courts of law. 
That such an institution should have grown up in the 
United States is one of the most felicitous features of 
American political evolution. The germ of its develop- 
ment is found under the colonial governments, from 
which in the last resort appeal might be taken against 
any action of the legislature or executive of the colony 
to the king in coimcil. The written charters that had 
been so familiar in colonial history and still existed at 
the Revolution in Massachusetts, Rhode Island, and 
Connecticut prepared the way for written constitutions 
limiting the powers of the organs of government. The 
severing of the connection of the colonies and the crown 
rendered it necessary to substitute something for the 
appellate jurisdiction of the king in council. Even be- 
fore the making of the federal Constitution (1787) the 
judiciary of the new state governments had begun to 
occupy this field. Several decisions of state tribunals 
are recorded in which acts of the legislatures are de- 
clared unconstitutional. In the report of a Virginia 
case in 1782 in which this point was raised, it is stated 
that '• Chancellor Blair with the rest of the judges was 
of the opinion that the court had power to declare any 
resolution of the legislature or of either branch of it 
unconstitutional and void.' '' The federal Constitution 
of 1787 did not in terms lay down this function of the 
courts ; but the proper sanction for it is found in art. iii, 
§ 2, and in art. vi, of the Constitution. "The Judicial 

1 W. W. Willoughbv, Supreine Court of the United States, chap. v. 



214 THE STRUCTURE OF THE GOVERNMENT 

Power," it is laid down, " shall extend to all cases . . . 
arising under this Constitution." Moreo\jer " this Con- 
stitution and the Laws of the United States which shall 
be made in pursuance thereof . . . shall be the supreme 
Law of the Land : and the Judges in every State shall 
be bound thereby." The case of Marbury v. Madison 
(1803), in which an act of Congress was declared un- 
constitutional, definitely established the precedent for 
the later working of the national government. The 
constitutional relation thus established between the 
judiciary and the other branches is not, however, unique 
in the United States. In the Dominion of Canada, for 
example, the judiciary exercise an analogous power in 
their interpretation of the British North America act, 
and the judges under the federal system of the Aus- 
tralian commonwealth are entrusted with a similar 
function. 

Widely contrasted with the relation in which the 
American courts of law are thus seen to stand as re- 
gards the Congress and the officers of the executive, is 
the position occupied by the courts in the chief conti- 
nental countries of Europe. The latter, as we have 
seen, are (with the exception of Hungary) countries 
with written constitutions. Yet the courts of law are 
not found to exercise the function of declaring the 
acts of the legislature unconstitutional. In such coun- 
tries as France and Italy this is not so surprising, for 
these are not federal governments, and the constitution 
in these cases is concerned only with the organization 
of the government, and with the protection of individ- 
ual liberty, and not with the division of legislative 
power between central and local authorities. As a con- 



THE JUDICIARY AXD THE ELECTORATE 213 

sequence of this tlie French courts do not question the 
validity of a statute. Conceivably a French statute 
might be grossly unconstitutional ; a law, for instance, 
which professed to abolish the republican form of gov- 
ernment would be in direct violation of the constitu- 
tion. But in practice such do not occur. In the case 
of the German empire, which is federal, and w^hich has 
a written constitution, one would expect to find the 
courts constantly called upon, as in the United States, 
to adjudicate upon the constitutionality of state and 
federal laws. In point of fact no such decisions are 
given. Isolated cases have occurred in which the courts 
(the federal as well as state) have declared certain 
statutes of the minor German legislatures to be in vio- 
lation of the state constitution. But the legality of 
imperial statutes once made passes unquestioned. The 
bulk of authority, supported by the declaration of the 
Reichsgericht (or imperial court) itself, is in favor of 
admitting that such a revlsional power exists. Other 
authorities take an entirely opposite view. Since no 
law of the imperial legislature goes into force until 
officially promulgated by the emperor, these winters 
regard the promulgation as itself supplying the neces- 
sary test of constitutionality. Be this as it may, the 
fact of the matter remains that imperial statutes are 
always accepted by the courts as valid. More note- 
worthy still Is the fact that in the federal republic of 
Switzerland the same practice prevails ; indeed it is a 
provision of the Swiss constitution that every statute 
passed by the federal assembly must be accepted as 
valid. ^ 

1 Constitution, art. 113. 



216 THE STRUCTURE OF THE GOVERNMENT 

3. Administrative Law and Administrative 
Courts. But the absence of this revising power of the 
courts is not the only point in which Continental practice 
is at variance with that of America. The whole status of 
executive officers before the law is different. The prin- 
ciple by which every official in England and America 
is responsible to the courts for his official actions does 
not apply. On the Continent this form of liability is 
replaced by the regulations and procedure known as 
administrative law. 1 Under this system public servants 
acting in their official capacity are not subject to the 
jurisdiction of the ordinary tribunals, but can only be 
called to account before the administrative courts. 
These are specially constituted bodies composed for 
the most part of members of the executive. In France, 
for example, there is a graded service of administrative 
courts which exist parallel with the ordinary tribunals. 
In each department the prefect and his prefectoral 
council (appointed by the president) act as an adminis- 
trative court. Special jurisdiction is exercised by the 
court of accounts, councils of revision (as to military 
recruiting), colonial courts of conflict, and certain coun- 
cils for public instruction. Final jurisdiction is exer- 
cised by the council of state,^ a body nominated by the 

^ The term administrative law has more than one sense ; as used in 
France {droit administratif) it refers not only to the law covering 
the relation of the administrative authorities towards private citizens, 
but also to the whole of the public law relating- to the org-anization of 
the state. In Eng-lish it is more commonly used in the former restricted 
sense. For the operation of administrative law in continental Europe 
the student may consult Simonet, Traiti. Elementaire de Droit Public 
(1897), and Goodnow, Comparative Administrative Law. 

2 For the precise composition of this council, which is partly an ad- 
visory executive body and partly a judicial tribunal, consult De la Eigne 



THE JUDICIARY AXD THE ELECTORATE 217 

president. A special body (the tribunal of conflicts), 
made up of equal representation from the two kinds of 
courts, together with the ministers of justice and two 
added members, decides on cases of disputed compe- 
tence. The jurisdiction of administrative courts over 
official actions is not indeed quite without exception. 
" The ordinary courts have as a result of statutory pro- 
vision the entire control of the matter of expropriation 
or the exercise of the right of eminent domain. Again, 
arrests made by the administration are under the con- 
trol of the ordinary courts as a result of the Penal Code. 
It is true also that where the government or a depart- 
ment of the government becomes a party to an ordinary 
commercial contract tlie jurisdiction is in part given 
to the ordinary courts." ^ But in the main the state- 
ment holds good that in France, and in constitutional 
countries generallj^, conflicts between individuals and 
the administration are settled by the administration 
itseK. 

The administrative system of courts originated in 
France with the extension of the absolute centralized 
monarchy, which tended to su^^iplant by royal officials 
the older local tribunals. The Constituent Assembly 
of 1789 expressly adopted the principle of executive 
courts for passing upon the acts of the executive. In 
doing this they hoped to free the executive from 
being unduly dependent on the judicial branch of 
the government, and found the warrant for their 
action in the familiar dogma of the separation of 

de Villeueuve, EUments de Droit Constitutionnel FranQais, part i, chap. 
iii, § 2, art. iii. 

^ Goodnow, Comparative Administrative Law, 



218 THE STRUCTURE OF THE GOVERNMENT 

powers. " The constitution will be equally violated, 
if the judiciary may intermeddle with administrative 
matters and trouble administrative officers in the 
discharge of their duties. . . . Every act of the courts 
of justice which purports to oppose or arrest the action 
of the administration, being unconstitutional, shall be 
void and of no effect." ^ The principle thus established 
has been adopted by the successive governments that 
have ruled over France. Though nominally abolished 
at the inception of the third republic, the technical 
interpretation of the decree of repeal has been such 
as to render it ineffectual in practice. Theoretically 
dependent on the principle of distributed powers, it has 
really commended itself as a means of strengthening the 
hands of the executive government. Some writers have 
indeed sought to show that the administrative courts 
themselves afford a valid protection of individual lib- 
erty. But the bulk of the evidence seems to prove that 
the rights of the individual are of necessity sacrificed 
under a system in which the executive may be at one 
and the same time the aggressor and the judge of the 
aggression. 

4. The Electorate : Evolution of So-called Uni- 
versal Suffrage in Leading Countries. In speak- 
ing of the executive, legislative, and judicial branches 
of government, reference has frequently been made to 
the election of the officials of these departments by the 
people. Let us therefore conclude the discussion of 
the organs of government by a brief treatment of the 
electorate. The body thus designated is not identical 

1 Instructions to the Law of Aug. 16-24, 1790. Cited by Goodnow, 
op. cit. 



THE JUDICIARY AND THE ELECTORATE 219 

with tlie whole body of citizens. A citizen means any 
individual member of a state, male or female, who owes 
it allegiance and who may claim its protection, but the 
electorate only includes those who under the suffrage 
laws of that particular state, enjoy the right to vote. 
The electorate, or voters, are sometimes spoken of as 
the " political people," to distinguish them from those 
who have no direct legal share in the conduct of public 
affairs. The French constitution of 1791, anxious to 
harmonize the principle of popular sovereignty with 
a very restricted suffrage, spoke of their two classes 
as "active and passive citizens." 

The right of the general body of the people to vote 
for representatives to govern them is the corner stone 
of the free institutions of Great Britain and Amer- 
ica. The origin of this representative government lies 
hidden at the very beginnings of Anglo-Saxon in- 
stitutions. In Saxon England we find every town- 
ship sending up an elected reeve and four men to 
represent it in the court, or general meeting, of the 
shire. It is presumed that in such early elections all 
free men had a part. But at the very beginnings of 
parliamentary government in England the right to 
vote tended to restrict itself to owners of land. This 
was only natural in a country like England in the fif- 
teenth century, where wealth, social standing, and 
ownership of land were almost identical terms. A 
statute of Henry VI (1430) limited the right to vote 
in county elections to residents possessing a freeliold 
worth forty shillings a year.^ The value of money 
having changed since the fifteenth century in a ratio 

^ Anson, Law and Custom of the Constitution, part i, chap, v, sec. ii, § 1. 



220 THE STRUCTURE OF THE GOVERNMENT 

of at least one to fifteen, this means a quite high pro- 
perty qualification. Although the clause requiring 
residence fell into disuse, this statute governed the 
franchise in the English counties for four hundred 
years. In the boroughs, too, the suffrage, though vary- 
ing greatly from town to town, rested for the most 
part either on the possession of real estate or the pay- 
ment of taxes. Thus it came about that in the course 
of time the right to vote became permanently associated 
with the holding of property. This political fact was 
accompanied, as is usually the case, by an explanatory 
political theory. The property-owner was viewed as 
having a stake in the community, and his vote was 
regarded as the consequence, not of his personal 
citizenship, but of his property. In the American 
states in the early years of their independence this 
theory was prevalent. The suffrage, and with it the 
right to be elected, rested on quite restrictive property 
qualifications. Even in Revolutionary France the first 
constitution (1791) included among its "active citi- 
zens" only those who paid annually a " direct tax equal 
at least to the value of three days' labor." 

But the democratic ideas which worked themselves 
out in the philosophy of the eighteenth century and in 
the French and American revolutions gradually led to 
the dominance of a quite different view. This was the 
principle of (so-called) " universal suffrage,"or the right 
of all adult capable citizens to vote, by virtue of their 
being such, and irrespective of the holding of property. 
This doctrine was proclaimed by the Jacobins, or ex- 
treme republicans among the French revolutionists, 
though even among these only a minority considered 



THE JUDICIARY AND THE ELECTORATE 221 

that women should share in this "universal right." ^ 
The influence of the same theory was seen in America 
in the early part of the nineteenth century, when the 
states abandoned the princij^le of a property qualifica- 
tion, and moved nearer and nearer to manhood suf- 
frage. In England too, where abstract political theories 
have but little weight, the practical injustice of the 
restricted franchise led to the long agitation culminat- 
ing in the Parliamentary Reform of 1832. The various 
governments which have modeled themselves on those 
of Britain and the United States have adopted also 
the principle of universal suffrage. 

In the democratic countries of to-day, the people 
entitled to vote represent a fraction of the population 
ranging from one fifth downwards. The general prin- 
ciple is that of the admission to the polls of all the 
adult male citizens of mental and moral capacity. The 
principle is extremely simple, and in some states is 
applied to the whole community by a single and com- 
prehensive law. Thus, for example, in France, the law 
of July 7, 1874, grants the suffrage to all male citizens 
of France at least twenty-one years of age. Similarly 
the right to vote for members of the German Reichstag, 
the popular house of the imperial legislature, is granted 
by the constitution to all resident male citizens of the 
German Empire who have reached the age of twenty- 
five.^ In the United States, the suffrage, though ex- 
tremely democratic both in principle and practice, is 
extremely complex in its legal details. The Constitution 

^ For tlie question of female suffrag-e during the French Revolution, 
Aulard, II ist aire politique de la Revolution Franraise, may be consulted. 
2 Constitution of the Empire, art. 20. 



222 THE STRUCTURE OF THE GOVERNMENT 

leaves the matter in the hands of the state govern- 
ments ; in voting for members of the federal House of 
Representatives, the voters (Constitution, art. i, § 2) 
" in each State shall have the Qualifications requisite 
for Electors of the most numerous Branch of the State 
Legislature." To this is to be added the provision 
of the Fifteenth Amendment: "The right of citizens 
of the United States to vote shall not be denied or 
abridged by the United States or by any State on ac- 
count of race, color, or previous condition of servitude." 
The suffrage laws of the separate states, though all 
agree in excluding persons under twenty-one years of 
age, vary very much in reference to qualifications. 
Nine states, Wyoming (1869), Colorado (1893), Utah 
(1896), Idaho (1896), Washington (1910), California, 
Oregon, Arizona, and Kansas (1912), grant suffrage 
to women. Some states grant the suffrage to aliens, 
otherwise qualified, who have declared their intention 
to become citizens. The term of necessary residence 
in the state previous to voting varies from three months 
(Maine) to two years (Alabama and others); so also 
does the requisite term of residence (if any) in county, 
town, or precinct. The general list^ of exclusions com- 
prises insane persons, idiots, and felons. Most states 
exclude paupers, and some specifically exclude the 
Chinese (California, Nevada, Oregon). In several of 
the Southern states peculiar suffrage laws are found 
which are intended to circumvent the Fifteenth Amend- 
ment in order indirectly to prevent the negroes from 
voting. Thus in Louisiana the voting list comprises 
all citizens of the United States who are able to read 
and write, or who own three hundred dollars' worth of 



THE JUDICIARY AND THE ELECTORATE 223 

property assessed in their names, or whose fathers or 
grandfathers were entitled to vote on January 1, 1867. 
In the case of the United Kingdom the parliamen- 
tary franchise is of the most complicated character. 
The reason for this is that Parliament has never seen 
fit to revise the existing franchise at a siugle stroke 
and to repeal all previous statutes and substitute for 
them a single and uniform suffrage law. Instead of 
this each measure of parliamentary reform has only 
partially repealed existing legislation. Three great 
statutes have been passed in the nineteenth century in 
extension of the right to vote. The Reform Act of 
1832 widened the old county franchise by including 
tenants as well as owners of land, and gave the borough 
franchise to rate-paying householders occupying prem- 
ises worth at least ten pounds a year. The Reform Act 
of 1867 further extended the franchise. Finally the 
Representation of the People Act of 1884 establishes 
in England and Wales both in towns and county a very 
democratic suffrage : a person entitled to vote must be 
of the male sex, at least *t wen ty-one years of age ; must 
be either the owner or the lessee of land or premises of 
a certain yearly value, the sum varying according to the 
nature of the tenure; or else must occupy or be a lodger 
in fixed premises of a certain yearly value, or on which 
the local rates have been paid. The qualifications for 
the parliamentary franchise in Scotland and Ireland 
are similar to, though not identical with, those in Eng- 
land. In addition to this, persons may be qualified by 
virtue of the remnants oi earlier unrepealed laws; 
they may for example be voters by virtue of being 
born and resident freemen of certain towns, or liv- 



224 THE STRUCTURE OF THE GOVERNMENT 

erymen of one of the city companies of the city of 
London, or as graduates on the electoral roll of Ox- 
ford, Cambridge, Dublin, or London, etc. The list of 
excluded persons comprises aliens not naturalized, idi- 
ots, convicted felons, and members of the peerage. 
For fuller information reference may be made to the 
first volume of Sir William Anson's " Law and Custom 
of the Constitution." The complex historical aspect of 
the present English suffrage and its practically demo- 
cratic operation is highly characteristic of English 
political institutions. Little heed is taken of the logical 
requirements of abstract political theory provided that 
the practical operation is not, to an appreciable degree, 
repugnant to the demands of common-sense justice. 

5. Criticism of Existing Systems ; the Case of 
Women, of Negroes, etc. From what has been said 
of existing suffrages we may now turn to consider the 
validity of the theory of so-called universal suffrage. 
In the first place it is to be noted that the suffrage in 
question is by no means universal. It nowhere includes 
more than a minority of the population. It omits 
everywhere children and minors, and persons of un- 
sound mind and of proven criminality. It leaves out 
almost everywhere the female half of the population. 
That the right to vote cannot be absolutely and liter- 
ally universal requires no proof : no amount of politi- 
cal dogma could make it appear reasonable that a 
ballot should be deposited by a two-year-old child or 
by an incapable idiot. That the principle of exclusion 
must be adopted is an actual if not a logical necessity. 
It is extremely important to duly appreciate this fact. 
Universal suffrage everywhere omits a large number 



THE JUDICIARY AND THE ELECTORATE 225 

of citizens, and the reason is in every case that the ex- 
cluded classes are composed mainly of persons who, in 
the opinion of those who vote, are not fitted to exer- 
cise the rio;ht of votino-. It is to be observed that the 
excluded class is not in reality composed entirely of 
persons unfit to vote. No one would claim that no 
young men of twenty are ever fit to vote, and that all 
men over twenty-one are always fit to vote. The exclu- 
sion merely means that on the average persons under 
twenty-one have not the required capacity, and that 
those over twenty-one have it. It appears, then, there 
is no such thing in theory or in practice as an abso- 
lute and universal right to vote. Nor is the exclusion 
of any class of citizens, in and of itself, a violation of 
any abstract law of political justice. Ever}^ such ex- 
clusion must rest for its justification on the question 
whether the excluded persons are — taken on the aver- 
age — not capable of the political judgment required 
in voting. 

The general view thus obtained may be applied to 
two of the prominent questions of the time in regard 
to the suffrage, the right of women and of negroes to 
exercise a vote. The political rights of women have 
been much agitated during the last fifty years, but as 
yet no very great advance has been made in the direc- 
tion of female suffrage. In the United States, as has 
been said above, nine of the states grant to women on 
equal terms with men the full suffrage both for local 
and state elections. In addition to this women vote in 
school elections in thirty-one states ; in some states they 
vote on all tax questions ; in Iowa and Montana when 
a vote of the citizens is taken on a proposed issue of 



226 THE STRUCTURE OF THE GOVERNMENT 

municipal bonds, and in New York state by a law of 
1901 women owning assessed village property have a 
similar voice in a local referendum. As against this it 
is to be recorded that the proposal to admit women to 
the full suffrage has recently been defeated in New 
Hampshire (1903) and in several Western states 
(as in South Dakota, 1898) and in three states in 1912. 
The right to vote for members of the national legisla- 
tures is not granted to women in the chief countries of 
Europe except in Finland, and in Italy to widows 
owning property. In England women cannot vote at 
parliamentary elections, but, if qualified, may vote in 
any local elections. Women are granted the full suf- 
frage in New Zealand and in the states of Australia, 
and vote on the same terms as men in the elections 
for the Senate and House of Representatives of the 
Federal Parliament of Australia.^ 

Historically considered the exclusion of women is 
only a part of the general economic and legal posi- 
tion of dependence in which women have been placed. 
Indeed the word " exclusion " is hardly applicable. 
What has happened has been negative rather than pos- 
itive. Until quite recent times only a very small part of 
the men of the community had the right to vote. It is 
more accurate to say that the women have never been 
admitted than that they have been expressly excluded. 
The arguments of John Stuart j\Iill and others in favor 
of female suffrage have turned partly on abstract jus- 
tice — the claim of every person, as a person, to vote — 
and partly on the idea that women are in the main as 
well qualified as men, or at any rate sufficiently quali- 

^ See " Political Woman in Australia," Nirieteenth Century, vol. Ivi. 



THE JUDICIARY AND THE ELECTORATE 227 

fied. The first contention seems quite invalid : the 
principle of exclusion is, as has been shown, a necessary 
one. The second contention remains still a debatable 
point. As against these arguments it has been urged 
that women, being mentally inferior to men in those 
particular aptitudes required for the proper exercise 
of political rights, had better be excluded. It is also 
claimed that women are for the most part dependent 
for their political convictions on the opinions of a hus- 
band, father, or other male relation: they are thus al- 
ready represented in an indirect fashion, and to give 
them a vote would unfairh' duplicate the voting power 
of their male relations. On these grounds a distinction 
is sometimes made- between the claims of married and 
unmarried women. 

The other vexed question relating to the suffrage is 
that of permitting the negro race to vote. Every one 
knows that the Southern states — the white people of 
the Southern states — would never have conferred even 
a nominal voting power on the black race except by 
compulsion. This compulsion has been found in the 
amendment to the Constitution already mentioned. Its 
adoption was due partly to the desire to make use o£ 
the negro vote for political purposes, and partly to the 
force of public opinion generated by the idea that 
abstract principles of justice gave the negro a riglit to 
the suffrage. There has resulted the rather absurd 
situation whereby many ])ersons in the United States 
have been ardent champions of the supposedly inherent 
political rights of the blacks while willing to apply an 
entirely different criterion to the case of women, both 
the white and the black. Women are excluded as unfit 



228 THE STRUCTURE OF THE GOVERNMENT 

to vote, and blacks are included on the ground that 
nobody can be unfit to vote. The exact extent of polit- 
ical capacity of these two classes is a matter that would 
admit of some discussion ; but it seems hardly rea- 
sonable to think that an illiterate and in many ways 
debased negro population can have a political claim 
superior to that of educated and intelligent American 
women. Unhappily a false and hopelessly abstract view 
of political rights and the rigidity of the federal Con- 
stitution prevents a rectification of the political error 
made in admitting the negroes to the suffrage. In prac- 
tice the Southern states have found various means to 
render the negro vote largely illusory. But legally the 
anomaly persists. 

6. Representation of Minorities. A question of 
especial interest in reference to voting is the repre- 
sentation of minorities. If the members of a national 
legislature were all elected out of the whole community 
on one "general ticket," — each voter voting as many 
times as there were places to be filled, — it is clear that 
there would be a minority group of voters who elected 
none of their candidates. So glaring an illustration of 
the " unrepresented minority "does not in practice occur. 
The need of representing at least a part of the people 
in each district naturally leads to the division of the 
whole country into districts from each of which a can- 
didate, or a group of candidates, is elected. But even 
with such a division into districts, a number of the 
people in each throw away their votes on a candidate 
not elected and thus remain in a sense unrepresented. 
This evil may be aggravated if those in power so divide 
up the election districts as to make the most of the 



THE JUDICIARY AND THE ELECTORATE 229 

votes of the adherents of their own party and to make 
the least of the votes of their opponents. This is the 
process known as gerrymandering, and unfortunately 
only too familiar in modern politics. At times it is 
effected by so allotting the electoral districts that the 
adverse voters will be too few everywhere to carry any 
district. If this is impossible the districts are so con- 
trived as to "bunch together " the hostile voters, and 
thus it results that when they do carry a district, they 
carry it by a needlessly large majority, and so practi- 
cally lose a lot of voters. 

Much attention has been given to the problem of 
how to represent the minorit}^ and various schemes 
have been proposed for this purpose, and to some 
extent adopted. Of these a few may. be mentioned. 
The most noteworthy of all, historically, is the scheme 
of Mr. Thomas Hare, which attracted considerable 
attention in England in the middle of the nineteenth 
century.^ This was the plan of " self-made constitu- 
encies." Instead of dividing the country into districts, 
it was proposed that any candidate should be elected 
for whom sufficient votes were cast anywhere in the 
country. The number required was to be found by 
dividing the number of voters by the number of seats 
in Parliament to be filled. By this means any par- 
ticular minority group, instead of being scattered in 
district constituencies, and everywhere swamped, could 
combine themselves into a united vote. The scheme, 
however, demands too elaborate a political activity on 
the part of each voter to be at all practical.^ 

^ Thomas Hare, The Election of Ilepresentatives, 1850. 

2 For criticism see Bagehot, English Constitution, chap. vL 



230 THE STRUCTURE OF THE GOVERNMENT 

Another method of minority representation is the 
plan of " limited voting." This is used whenever sev- 
eral candidates are to be elected to form a board 
or council ; it would not apply to districts where 
only one candidate is to be elected. Each voter is 
allowed to vote, not for as many candidates as there 
are places to fill, but only a limited number of times. 
For example, in the elections to a city council, there 
may be twelve places to fill, but each voter has only 
seven votes. The result is to elect seven members of 
one political party, and five of the other. No one party 
could elect all unless strong enough to divide its ad- 
herents into two distinct voting groups, and still defeat 
the other party. Such a system meets the case of 
representing a second party, but may, of course, leave 
a further majority unrepresented. Similar to this is 
the cumulative vote. In this plan, where a number of 
persons are to be elected, each voter may vote once for 
each of several candidates, or give all his votes to one. 
Thus, if twelve candidates had to be chosen, a very 
feeble minority could get a representative if each per- 
son gave all his votes to the same candidate. 

In practically all elections it happens that the elected 
candidate gets more than enough votes to elect him. 
Only in rare instances will he happen to get just the 
necessary odd vote and no more. The surplus votes, 
therefore, again constitute an unrepresented minority. 
To meet this difficulty there has been contrived the 
device of " proportional representation." Here the 
voter is called upon to indicate not only his choice of 
a candidate, but the names he would choose as a second 
or third choice, and so on. The surplus votes of each 



THE JUDICIARY AND THE ELECTORATE 231 

elected candidate are then handed on to the voter's sec- 
ond choice, or, if not needed there, to the third, etc. 
A necessary feature of proportional representation is 
the formation of constituencies returning more than 
one member, without which of course there would be 
no recipient for the surplus vote. Proportional repre- 
sentation, in one form or another, has already been 
introduced in Belgium, Switzerland, Denmark, Sweden, 
in certain minor European governments, and in the 
senatorial and certain other elections of the Union of 
South Africa. Two chief forms may be distinguished. 
Under the "list" system, where several representatives 
are to be elected in one constituency each political 
party or group makes up a list of its candidates in 
order of favor. According to the proportion of the 
vote of the parties, the whole or part of each list is de- 
clared elected. The "single transferable vote" is more 
generally advocated in England and America. Under 
this plan each voter marks the candidates in the order 
of his preference. But the difficulty lies in deciding 
which are to be the ballots that elect the first candi- 
date and which are those from which the second choice 
is to be transferred. In practice this can be done only 
by hazard of the drawing of the ballots from the box, 
or by some complicated method of coefficient values 
attached to first, second, and successive votes. 

A quite distinct form of minority reprcsent;\tion, clirectecl towards 
a ])\rticular political end, is found in tlie elections of the kiut^dom 
of Prussia. It is used in the elections for the Prussian parliament, 
thou;^li not, of course, in those for the imperial Roiclistag. The 
voters are divided into three classes, not numerically, but accord- 
ing to the taxes that they pay. If the total taxation of the district 
amounts to a certain sum, then the first class is made up of the 
richest property-owners in sufficient number to represent one 
third of the taxes. The second class represents the next third of 



232 THE STRUCTURE OF THE GOVERNMENT 

the taxes, and the third class the rest. Each class chooses an equal 
number of " electors " for an electoral college, and this latter 
makes the actual selection of the members of Parliament. It can 
be seen at once that the two upper classes, voting together, 
though representing only a minority of the people, can absolutely 
outvote the third. Much the same plan is adopted in Prussian 
local elections. To American ideas this system is grossly unjust. 
The Socialist party in Prussia for some time abstained from vot- 
ing in Prussian elections rather than accept a vote on such condi- 
tions. It can only be defended on the principle that property, not 
the citizens personally, is the thing to be represented in a legis- 
lative body. 

READINGS SUGGESTED 
Dicey, A. V., Law of the Constitution (4th edition, 1893), part ii, 

chap. xii. 
Wiiloughby, W. W., The Supreme Court of the United States 

(1890), chap. v. 
Schouler, J., Constitutional Studies (1897), part iii, chap. iv. 
Bradford, G., The Lesson of Popular Government (1899), vol. i, 

chap. i. 

FURTHER AUTHORITIES 
Von Hoist, H., Constitutional Law of the United States of 

America (1887). 
Goodnow, F., Comparative Administrative Law (1897). 
Taswell-Langmead, English Constitutional History (5th edition, 

1896). 
De la Eigne de Villeneuve, Elements de Droit Constitutionnel 

Frangais. 
Arndt, A., Staatsrecht des Deutschen Reiches (1901). 
Hdie, Les Constitutions de la France (1880). 
Freeman, E. A., Comparative Politics, Lecture V (1873). 
Stubbs, W., Constitutional Plistory of England (4th edition, 1883). 
Ridges, E. W., English Constitutional Law (1905). 
Brown, W. J., The New Democracy (1899). 
Hare, T., The Election of Representatives (1859). 
Walpole, S., The Electorate and the Legislature (1881). 
Mill, J. S., The Subjection of Women (1869). 
Mill, J. S., Representative Government (1875). 



CHAPTER V 

FEDERAL GOVERNMENT 

1. Importance of the Federal Principle ; its Historical DeTelbpment. 
— 2. The Different Kinds o£ Federations. — 3. Sovereignty in a 
Federal State. — 4. Utility of the Federal Principle in effecting a 
Compromise. — 5. Distribution of Power in Federal States. — 6. Con- 
clusions. 

1. Importance of the Federal Principle ; its 
Historical Development. The subject of federal 
government is so important that it may well merit a 
separate chapter. The origin and growth of federation 
and the purpose it has served in the evolution of the 
past are among the most interesting topics of historical 
study. Of the political problems of our own time 
none are of more vital bearing than the relation of the 
local and central powers in a federal system. In the 
development of modern states the principle of federa- 
tion has played a prominent part. It has supplied the 
requisite cohesive power to bind together the common- 
wealths that compose the United States, and the un- 
equal monarchies and free cities that are joined into 
the German Empire. Mexico, Brazil, and Switzerlantl 
are federal republics. The British Empire is, as a 
whole, a unitary state, but its two most important de- 
pendencies, the Dominion of Canada and the Common- 
wealth of Australia, are, when considered separately, 
federal systems closely resembling that of the United 
States. As far as our present political vision reaches, 
it seems as if any attempt to create a universal state 



234 THE STRUCTURE OF THE GOVERNMENT 

must proceed along the lines of federation. It may 
perhaps be reasonably thought that the experience 
now being gained in the construction of composite 
governments on a federal plan is supplying to civilized 
mankind the requisite training for the making of the 
world state of future ages. 

It is impossible to overestimate the important part 
that has been played by federation in the history of 
political growth. Speaking broadly, one of the chief 
features in the evolution of civilized government has 
been the extension of the area covered by a single 
political unit or state. This extension has not of course 
proceeded always in a continuous chronological course. 
Modern Switzerland is but a diminutive state when 
compared with the Roman Empire. Yet it is true in 
the main that one of the most notable and most essen- 
tial factors of political progress has been the increasing 
size of the territory brought into a single state. ^ To 
accomplish this, two great historical forces have been at 
work. Of these one is the principle of conquest, ab- 
sorption, and expansion. The growth of the French 
monarchy and the spread of British dominion illustrate 
this. The other has been the principle of deliberate 
federal union, whereby a basis of compromise is af- 
forded permitting the political junction of previous 
states which are too closely connected by situation, 
language, and customs to remain apart, but which are 
too unlike in area, local customs, etc., to permit of com- 
plete amalgamation. Of these two methods the one is 
the path of peace, the other is the path of war. No 
lasting union of the great states of the world can now 

^ See also part i, chap iii, § 5, aliove. 



FEDERAL GOVERNMENT 235 

be expected from the process of conquest. If united at 
all it must be only by means of a union whicli will de- 
stroy neither national pride nor national autonomy. 

In its broadest sense the term federation indicates 
any form of union entered into by two or more inde- 
pendent states. Numerous historical examples at once 
suggest themselves. At the very beginning of political 
history we have the famous Achaean league. This was 
originally a defensive alliance of twelve cities of the 
Peloponnesus, but in its later shape as revised in the 
third and second centuries (b. c. 281-146), this " after- 
growth of Hellenic freedom " assumed a more elaborate 
character. It included Corinth, Megara, and many 
other important city states of southern Greece. Each 
city retained the control of its own internal regulation, 
but surrendered into the hands of the league the con- 
trol of foreign relations and war. "There was," says 
Professor Freeman,^ "an Achaean nation with a national 
assembly ... no single city could of its own author- 
ity make peace or war." Had it not been for the rise 
of the world power of the Roman Empire, such a league 
might have supplied a means of converting the Greek 
city state into a territorial national state. In later his- 
tory the short-lived combinations of Italian cities in 
the thirteenth and fourteenth centuries may perhaps 
be spoken of as federations. A more conspicuous ex- 
ample is seen in the growth of modern Switzerland. 
Here the forest districts of Uri, Schwyz, and Unter- 
walden, still nominally subject to the emperor, banded 
themselves together for protection in 1291. The league 
thus formed grew in extent and power. Other districts 

^ Freeman, Federal Government. 



236 THE STRUCTURE OF THE GOVERNMENT 

and the free cities of Bern and Ziirich were joined to 
it. The defeat of Austria in the end of the fourteenth 
century gave it a practical independence, which was 
finally confirmed by the treaty of Westphalia (1648). 
In the confederation thus formed each member retained 
its separate independence, mutual protection being the 
only purpose of the union. Though for a time amalga- 
mated by the interference of the French Revolutionists 
into a republic, ''one and indivisible," it was not until 
the changes effected by the constitutions of the nine- 
teenth century (1848 and 1874) that Switzerland lost 
the appearance of a defensive league of separate states.^ 
A similar league was that existing between the in- 
dependent states of North America under the Arti- 
cles of Confederation (1781-1789). Here each state 
was a separate body politic. The only form of com- 
mon control was exercised through the Congress, a 
body of delegates which had no power to compel the 
states to its will, and no power to command or to tax 
the individual citizens of the thirteen states. The 
federal Constitution, made in 1787 and put in force 
in 1789, established in the place of this a single 
federal state, in which the central government was 
brought directly in contact with the citizens. The 
course of the nineteenth century has witnessed several 
federations of historical importance. Of these, the 
Swiss constitutions of 1848 and 1874, the federation 
of the provinces of Canada into the Dominion (1867), 
the creation of the North German Confederation (1867) 
and the German Empire (1871), together with the 
recent federation of the commonwealth of Australia 

^ Sidgwick, Development of European Polity^ Lecture XXIX. 



r^ 



FEDERAL GOVERNMENT 237 

(1900), are the most salient examples. Other countries, 
too, such as Mexico and Brazil, have adopted the fed- 
eral system of government, not as a means of increas- 
ing their area, but as a method of harmonizing local 
and national interests. 

2. The Different Kinds of Federations. When 
we consider the various forms of union by which sep- 
arate states may be joined together, it is clear that they 
present a graded series of increasing closeness. At one 
end of the scale is the offensive and defensive alliance 
entered into by sovereign states. Of this nature was 
the famous Family Compact of the eighteenth century, 
between the Bourbon monarchies of France and Spain. 
Such a union is extremely illusory in its nature, as, in 
the absence of any joint organ of government, it has 
no " sanction " or compelling force behind it. More 
advanced than this are confederate types such as the 
Achaean League, the German Confederation of 1815, 
or the Southern Confederacy. In this each partici- 
pant state retains, in name at any rate, its sovereign 
character. It may happen that in such a union of 
states the formal act of union declares itself perpetual 
and at the same time declares that each state retains 
its sovereignty. This is quite inconsistent, for it implies 
that each state is free to leave the union, and at the 
same time bound to remain in it. Such, however, is 
the case with the American Articles of Confederation 
(in force from 1781 till 1789) and the constitution of 
the Southern Confederacy. Beyond this type of union 
lies the federation jpar excellence^ — the federal state, ^ 

1 Professor Burgess claims that the term " federal state" is not ad- 
missible, on the g-round that a state is a unity. But while admitting that 



238 THE STRUCTURE OF THE GOVERNMENT 

a new unit composed out of previously sovereign states, 
now united to form a new sovereignty, but each retain- 
ing its own political sphere independent of the legal 
power of the central government. Such is the nature of 
the present federal union of the United States. Beyond 
this again might be distinguished what could be called 
an amalgamation, or complete fusion by agreement. It 
differs from the expansion of a single state by conquest 
of territory, in that the participant members enter into 
the amalgamation or amalgamated state of their own 
free will. The best examples are found in the compo- 
sition of the United Kingdom by the act of union of 
England and Scotland in 1707, and of Great Britain 
with Ireland in 1800. These unions were effected by 
similar statutes passed by the separate parliaments of 
the countries concerned. The unions declared them- 
selves to be made on certain stated terms and condi- 
tions. But the process differed from federation in that 
in each case the parliaments which made the unions 
then went out of existence in favor of a new parlia- 
ment which was legally sovereign, and not bound by 
the conditions of union. That this is more than a 
theoretical view of the case is seen in the fact that 
the British Parliament in 1869 abolished the estab- 
lished (Episcopal) church in Ireland, whose main- 
tenance was one of the terms of the union of 1800. 
A similar case of amalgamation is seen in the " fusion " 
of the separate Italian states into the kingdom of Italy 
(1859-60) . The product of such a process is a unitary 
and not a federal state. 

it is illogical to speak of a confederate state, it seems reasonable to use 
" federal state " to mean a state of which the organization is federal. 



FEDERAL GOVERNMENT 239 

The different kinds of united governments thus indi- 
cated have afforded ground for elaborate classification 
of the various species of confederacies and federal 
states. This has particularly interested the modern 
German writers on public law, some of whom distin- 
guish a great many subdivisions. Such classifications 
have been undertaken by Laband,^ Jellinek,^ and others. 
Jellinek distinguishes, in the first place, virtual unions, 
such as Canada and Australia (legally part of the uni- 
tary British state) and legal unions. The latter he sub- 
divides into (1) protectorates, etc., (2) unions of a supe- 
rior and inferior state (Staatenstaat),seen in the case of 
Turkey and Egypt, (3) monarchial unions, in which two 
independent states are joined under a common sove- 
reign, this again being subdivided into real and per- 
sonal, according to whether the union is organic and 
deliberate (Sweden and Norway, before 1905) or acci- 
dental (England formerly with Hanover), (4) the con- 
federacy (Staatenbund), and (5) the federal state (Bun- 
desstaat). Other classifications are still more minute. 
Of all these fluctuating subdivisions American and 
English writers are generally inclined to throw aside 
everything except the distinction between a confeder- 
acy and a federal state. This is a vital point in public 
law and requires some explanation. A confederacy is 
not a single state. It is a collection of independent 
sovereign bodies united on stated terms for certain 
purposes. Each of them is, legally, free to withdraw 
from the confederacy when it pleases. A confederacy 
cannot therefore be permanent and indissolvable, for if 

^ Staatsrecht des Deutschen Reich.es. 
2 Das Eecht des Modernen Staates. 



240 THE STRUCTURE OF THE GOVERNMENT 

it were so then the sovereignty of the component states 
would disappear. A federal state is a single state. Its 
subordinate parts may have been, though not of neces- 
sity/ sovereign states previous to the union ; they can- 
not be so after the formation of the federation. Such a 
union becomes, legally, indissolvable so far as the ac- 
tion of the separate state governments, or of the central 
government, is concerned. It could only be dissolved 
by the constitutional amending process, where such 
exists. The interpretation put on the Constitution of 
the United States by the seceding states of the South 
would have made it a confederacy. The interpretation 
put upon it in the North made it a federal state. 

3. Sovereignty in a Federal State. This leads 
at once to the much-disputed question of the sove- 
reignty in a federal state. Around this centred the 
great secession issue between the Northern and South- 
ern states, for the retention by a component state of its 
sovereign power carries with it of course the right to 
withdraw from a federation of which it is a part. Let 
us consider the question first of all apart from the 
particular case of the United States. If what has been 
said above is correct, it follows, by definition, that the 
creation of a federal state annihilates the sovereignty of 
the component states, — not limits it or divides it, but 
annihilates it. For sovereignty either is or is not. But 
in the new state the sovereignty does not lie in the 
central government ; it lies in the body, wherever and 
whatever it may be, which has power to amend the 

1 Compare the ease o£ the republic of Brazil ; the constitution of 
1891 puts the provinces on a federal basis, but they were not previously 
independent states. 



FEDERAL GOVERNMENT 241 

constitution. Legally speaking, this sovereign body 
can entirely abolish the federation and restore each 
member of it to its original independence. This is not 
the same as secession, but it carries with it the conse- 
quence that such a union is not legally indissolvable. 
In a confederacy, on the other hand, each state is still 
a sovereign state. There is properly no confederate 
law. Any common regulations adopted by a central 
body of the confederacy, and binding on the citizens 
of all the states, are law to any such citizen because 
adopted as law by his own state. Where law exists, a 
state exists. Where a state exists then it has sovereign 
power. It follows then that confederacy and secession 
are one and the same term in point of public law. In 
actual fact secession resolves itself into a question of 
force. Switzerland was an acknowledged confederacy 
from 1815 until 1848. Yet when the seven Koman 
Catholic cantons undertook to secede from it (1847) 
they were forced back into the confederation at the 
point of the sword. 

In the United States the controversy did not turn 
on the difference between a confederacy and a federal 
state. It turned on the question whether the United 
States was the one or the other. On this point, as 
Professor Goldwin Smith has said, the "constitution 
proved itself a ' Delphic oracle.' " The language of the 
Constitution, especially when read in the light of the 
antecedent history of the confederacy of 1781-89 
(which was virtually dissolved by the " secession " of 
eleven of its thirteen states') admitted of either inter- 

^ When the Constitution went into force (March 4, 178'.)) two states, 
Rhode Island and North Carolina, were not as yet in the Union. They 



242 THE STRUCTURE OF THE GOVERNMENT 

pretation. But apart from the question of secession, 
many American writers, while admitting the federal 
union to be permanent, have taken quite a different 
view of sovereignty from the one here indicated. This 
is the theory of dual or divided sovereignty. In ac- 
cordance with this view the sovereign power in a fed- 
eral union, such as the American republic, is not 
located in any single authority but is divided or dis- 
tributed between the federal and the state government. 
Such a theory is of course totally at variance with the 
whole conception of sovereignty explained in an earlier 
chapter. It is difficult to regard it as anything else 
than a confusion of sovereignty, which is complete and 
absolute, with constitutional power, which may be of 
any degree of limitation. If the federal and state gov- 
ernments represent a " division of sovereignty," then 
the three branches of the federal government represent 
a further subdivision, and so forth. In spite, however, 
of its inconsistency, the theory of dual sovereignty 
has found illustrious champions. President Madison 
devoutly believed in it. " It is difficult," he wrote, " to 
argue intelligibly concerning the compound system of 
government in the United States without admitting 
the divisibility of sovereignty." The American courts 
of the same period declared, " The United States are 
sovereign as to all the powers of government actually 
surrendered. Each state in the Union is sovereign as 
to all the powers reserved." ^ 

•were certainly no longer in the confederacy, which had ceased to exist. 
Yet the articles had declared that " the Union shall be perpetual " 
(art. 13). 

1 For the subject of sovereignty under the American constitution, 



FEDERAL GOVERNMENT 243 

4. Utility of the Federal Principle in effecting 
a Compromise. Returning from tlie question of the 
location of sovereignty to the general aspect of the fed- 
eral state, it may be noted that the peculiar utility of 
the federal principle in political construction lies in 
the spirit of compromise which it embodies. Every 
small community or state is driven by the need of pro- 
tection to seek for a union with its fellows. But a form 
of association which annihilates its own traditions of 
independent self-government naturally runs counter to 
the sympathies of its citizens. Still more is this the 
case if the communities to be united are of unequal 
magnitude. In this case a complete amalgamation into 
a unitary state would practically mean the absorption 
of the minor states into the large ones. The position of 
New Jersey, Delaware, and Connecticut at the time of 
the making of the Constitution was of this sort. Still 
more unequal was the federation long contemplated 
among the German states, and finally accomplished by 
the formation of the federal empire in 1871. The 
principality of Schaumberg-Lippe has an area of 131 
square miles, and a population of about 40,000 persons ; 
the kingdom of Prussia has an area of nearly 135,000 
square miles and a population of 35,000,000. In all 
such cases as this the federal system supplies the means 
of creating a single state, combining the whole powers of 
its members for international defense and for matters 
of general interest, without sacrificing the individual 
life and political susceptibilities of the component parts. 
Even among " states " of relative equality, as in the 

the student may consult Merriam, History of the Theory of Suvereignty 
since Rousseau, from which the above quotations are taken. 



244 THE STRUCTURE OF THE GOVERNMENT 

case of the majority of the forty-five states of the Union, 
the federal system has the advantage of permitting the 
legislation of each to accord with differences of environ- 
ment caused by climate, racial elements, local custom, 
and antecedents. In the United States, more than any- 
where else in the world, full advantage has been taken 
of the possibilities of the federal principle. Its history 
is largely a histor}^ of federations. In the earliest times 
of colonial history we have the formation of Connecti- 
cut by the federal union of its towns, and the establish- 
ment in 1643 of the New England federation uniting 
the northerly colonies for mutual protection. The 
quarrel with Great Britain in the eighteenth century 
brought the thirteen colonies into a union, which, after 
passing through the preliminary stages of the Continen- 
tal Congress and the abortive confederacy of 1781, was 
finally consolidated into the present federal republic. 
The principle of political growth and constitution 
adopted in 1789 has governed the whole evolution of 
the United States during the nineteenth century. 

5, Distribution of Power in Federal States. 
So much, then, for the historical and political aspect of 
the federal principle. Let us turn now to consider the 
important subject of the division of power between 
federal and subordinate authorities. It is not necessary 
in this connection to take account of any of the confed- 
eracies or federal governments previous to the forma- 
tion of the Constitution of the United States. In these 
only the most elementary and necessary powers were 
allotted to the central government. But the federations 
of 1789 and of the nineteenth century offer an interest- 
ing series which may be studied with a view to discov- 



FEDERAL GOVERNMENT 245 

ering the teaching of experience in regard to the rela- 
tive position of central and subordinate authorities. 
We may here best begin by stating the general princi- 
ples of apportionment of power. The prime historical 
motive of federation has been the need of defense. It 
is therefore first of all requisite that the federal govern- 
ment should have control of the military and naval 
power. Closely connected to this is the necessity that 
in its dealings with outside states the federation should 
conduct itself as a unit. The control of foreign rela- 
tions must therefore rest with the central power. 
Since neither foreign relations nor war can be con- 
ducted without financial support, it is further necessary 
that the federal government should have some power 
of taxation of the individual citizens. It is not enough 
that it should be able to requisition the component 
commonwealths for the money it needs : this was amply 
seen in the collapse of the finances of the old Confeder- 
ation (1781-89). To cover urgent and temporary needs, 
the financial power must include the power to borrow. 
These three functions — the conduct of war and de- 
fense, the control of foreign affairs, and the power to 
raise money — are the prime essentials without which 
no federal state can exist. 

As a second class of governmental duties may be 
ranked all those which are only effective in so far as 
uniformly and generally performed. Of this nature 
are the control of coinage, the regulation of patents 
and copyrights, and the conduct of the postal service. 
Third in the list will stand a variety of public affairs 
in which, though uniformity is not absolutely essential, 
it is nevertheless largely contributory to national pro- 



246 THE STRUCTURE OF THE GOVERNMENT 

gress. In this connection may be mentioned the control 
of the more extensive transportation facilities (those 
which constitute "interstate commerce "), — raih^oads, 
canals, telegraphs, etc., — the regulation of the banking 
system, and the establishment of a general tariff. The 
latter is a somewhat anomalous case. Federal control 
of a tariff is apt to find its place among the powers of 
the central government from financial reasons sooner 
than from economic. The tariff offers a convenient 
and somewhat surreptitious form of taxation. Though 
not theoretically a requisite power of the central gov- 
ernment, it is in practice of great importance : tariff 
walls are a serious impediment to the consolidation 
of national life. To illustrate this one may refer to 
the tariff bickerings of the thirteen states under the 
Articles of Confederation, or to the case of the German 
states united in the confederation of 1815. In this last 
instance not only was each state a separate tariff area 
from the others, but the single states were subdivided, 
— Prussia was a political unit, but contained sixty- 
seven different tariff areas. ^ As a fourth class may be 
placed the debatable category of subjects whose allot- 
ment to the federal or component government is a mat- 
ter of opinion and must depend on the circumstances 
of the case. Here the conspicuous examples are seen 
in the regulation of marriage and divorce and in the 
control of public education. Beyond this as the fifth 
and final class lie those duties which certainly ought 
to be left to the constituent governments to perform. 
Here again opinion may differ, but public works of 

1 See in this connection Seignobos, Political History of Europe, 
chap. xiv. 



FEDERAL GOVERNMENT 247 

merely local scope, public charities, the regulation of 
the liquor question, etc., are generally included. 

With this outline let us now briefly compare the 
actual distribution of powers in the chief federations 
under our notice. We may begin by quoting the legis- 
lative powers assigned to Congress by the Constitution 
of the United States. 

"The Congress shall have Power to lay and collect 
Taxes, Duties, Imposts and Excises, to pay the Debts 
and provide for the common Defence and general Wel- 
fare of the United States ; but all Duties, Imposts and 
Excises shall be uniform throughout the United States ; 

''To borrow money on the credit of the United 
States ; 

" To regulate Commerce with foreign Nations, and 
among the several States, and with the Indian Tribes ; 

*' To establish a uniform Rule of Naturalization, 
and uniform Laws on the subject of Bankruptcies 
throughout the United States ; 

"To coin Money, regulate the Value thereof, and of 
foreign Coin, and to fix the Standard of Weights and 
Measures ; 

" To provide for the Punishment of counterfeiting 
the Securities and current Coin of the United States ; 

" To establish Post Offices and post Koads ; 

" To promote the Progress of Science and useful 
Arts by securing for limited Times to Authors and In- 
ventors the exclusive Right to their respective Writ- 
ings and Discoveries ; 

" To constitute Tribunals inferior to the Supreme 
Court ; 

" To define and Punish Piracies and Felonies com- 



248 THE STRUCTURE OF THE GOVERNMENT 

mitted on the higli Seas and Offences against the Law 
of Nations ; 

" To declare War, grant Letters of Marque and Re- 
prisal, and make Rules concerning Captures on Land 
and Water ; 

" To raise and support Armies, but no Appropria- 
tion of Money to that Use shall be for a longer Term 
than two Years ; 

" To provide and maintain a Navy ; 

" To make Rules for the Government and Regulation 
of the land and naval Forces ; 

** To Provide for calling forth the Militia to execute 
the Laws of the Union, suppress Insurrections and re- 
pel Invasions ; 

" To provide for organizing, arming, and disciplin- 
ing, the Militia, and for governing such Part of them 
as may be employed in the Service of the United 
States, reserving to the States respectively, the Ap- 
pointment of the Officers, and the Authority of training 
the Militia according to the Discipline prescribed by 
Congress ; 

" To exercise exclusive Legislation in all Cases what- 
soever, over such District (not exceeding ten Miles 
square) as may, by Cession of particular States, and 
the Acceptance of Congress, become the Seat of the 
Government of the United States, and to exercise 
like Authority over all Places purchased by the Con- 
sent of the Legislature of the State in which the 
Same shall be, for the Erection of Forts, Magazines, 
Arsenals, Dock- Yards, and other needful Buildings; — 
And 

" To make all laws which shall be necessary and 



FEDERAL GOVERNMENT 249 

proper for carrying into Execution the foregoing Pow- 
ers, and all other Powers vested by this Constitution in 
the Government of the United States, or in any De- 
partment or Officer thereof." ^ 

It will be seen at once that apart from the special 
provisions relating to the Indians and the District of 
Columbia, there are no powers granted here that have 
not been given to the central government in all the later 
federations. The national government receives by this 
article but little more than the necessary powers of 
government. The residual power of government — the 
authority to control those things for which no special 
provision is made — -is elsewhere explicitly withheld 
from it. 

Let us place in immediate comparison with this the 
allotment of power between the federal and provincial 
governments in the Dominion of Canada. The basis of 
the constitution of Canada is a statute of the British 
Parliament named the British North America Act of 
1867. The provisions in respect to the distribution of 
power are in the ninety-first, ninety-second, and ninety- 
third sections of the act. They are particularly inter- 
esting in the present connection because they are based 
on the arrangement made in the Constitution of the 
United States revised in the light of subsequent polit- 
ical experience. In addition to the powers possessed 
by Congress, the legislative power of the Dominion 
Parliament extends to the criminal law, marriage and 
divorce, interest, and the raising of money by any 
mode or system of taxation. Other things, such as 
banking, etc., are included which are not explicitly 
1 Art. i, § 8. 



250 THE STRUCTURE OF THE GOVERNMENT 

granted to the Congress and to which the federal au- 
thority in the United States only reaches by interpreta- 
tion of implied powers. In addition to this the statute 
enacts that the Dominion Parliament has legislative 
power " in relation to all matters not coming within 
the classes of subjects by this act assigned exclusively 
to the legislatures of the Provinces." The amount of 
federal power expressly granted contrasts strongly with 
the section of the American Constitution quoted above. 
Even as compared with the power of Congress when 
expanded by the doctrine of implied powers, the con- 
trol of the Dominion over such items as the crimi- 
nal law represents a considerable increase of federal 
authority. 

Closely following upon the making of the Canadian 
constitution, we have the constitutions of two impor- 
tant federal states still in operation. These are the 
constitution of the German Empire (1871) and that 
of Switzerland (1874). lu each of these the scope of 
the central power is far wider than in that of the 
United States. In Germany the constitution, together 
with an amendment of December 20, 1873, grants to 
the federal government the control, not only of the 
things within the jurisdiction of Congress, but also the 
criminal law, civil law and judicial procedure, banking, 
medical practice, railroads (except in Bavaria), the 
regulation of the press, of trades, insurance (includ- 
ing workingmen's insurance and pension laws), and 
other matters.^ In Germany the legislative scope of 
the central government is vastly greater than in Amer- 
ica. Its action in the administrative direction is les^j 

^ Imperial Constitution, art. iv. 



FEDERAL GOVERNMENT 251 

since the principle of decentralization is here adopted 
and the federal measures (tariff, etc.) are carried out 
by the authorities of the constituent governments. The 
action of the central government is further narrowed 
in practice by the use that is made of the principle of 
concurrent jurisdiction. In many of the matters men- 
tioned above the power of the federal government is 
not exclusive. Where the federal government has not 
seen fit to act, the states are free to exercise a legisla- 
tive power. This applies for example to the control of 
railroads, medical practice, the criminal and civil law, 
etc. The federal jurisdiction Is only exclusive where 
from the nature of the case it must be so (such as rais- 
ing of money on the credit of the empire) or where it 
is expressly stated (for example, the taxation of im- 
ports).^ To prevent conflict of authority it is provided 
that a federal law always overrides a statute of one of 
the constituent parts of the empire. This same princi- 
ple of concurrent jurisdiction obtains of course in the 
United States, but to a much less extent ; most of the 
powers granted to Congress are forbidden to the com- 
monwealths, but In some matters, such as bankruptcy 
laws, they may act in the absence of federal legislation.^ 
The present constitution of Switzerland (1874), to- 
gether with the amendments since added, shows a wide 
range of federal power. " The legislative authority of 
the national government," says Professor A. Lawrence 
Lowell,^ " is much more extensive In Switzerland than 

1 Imperial Constitution, art. xxxv. 

2 This subject is well treated by Burg-ess, Political Science and CoH' 
stitutional Law, vol. ii, chap. vii. 

^ Governments and Parties in Continental Europe, vol. ii, chap. xi. 



252 THE STRUCTURE OF THE GOVERNMENT 

in this country, for in addition to the powers conferred 
upon Congress it includes such subjects as the regula- 
tion of religious bodies and the exclusion of monastic 
orders, the manufacture and sale of alcoholic liquors, 
the prevention of epidemics and epizootics, the game 
laws, the construction and operation of all railroads, 
the regulation of all labor in factories, the compulsory- 
insurance of workmen, the collection of debts, and the 
whole range of commercial law." To this may be 
added the fact that the federal government has the 
power (under the constitution) to compel the can- 
tons to establish compulsory secular education, gratu- 
itous in the primary schools. The Swiss government 
has, however, no power to levy direct taxes. 

As a concluding instance let us notice the position 
of the central power in the recent federation of the 
Australian colonies. The Commonwealth of Australia, 
considered apart from its connection with the British 
Empire, is a federal unit made of six separate " states." ^ 
Its constitution, like that of Canada, is found in a statute 
of the British Parliament enacted in 1900, under the 
title of the Commonwealth of Australia Constitution 
Act. The legislative power of the federal parliament 
is laid down in great detail.^ It includes all the essen- 
tial and virtually essential powers already treated, such 

^ Rightly or wrongly the Australians hare adopted the term states as 
the official designation of the component parts of their federation. 
Since the whole body is officially called the Commonwealth, we find 
the terminology used by Professor Burgess and other American writers 
exactly reversed. 

2 Constitution Act, part v, § 51 and § 52. A good commentary is 
given by Professor Harrison Moore, The Commonwealth of Australia, 
chap. V. 



FEDERAL GOVERNMENT 253 

as defense, taxation, postal service, tariffs, interstate 
commerce, etc. In addition to tliis the federal author- 
ity is explicitly declared to extend to bounties on 
production or export, insurance (other than state in- 
surance), marriage and divorce, invalid and old-age 
pensions, foreign corporations, acquisition of state rail- 
ways (with consent of the state), railway construction 
(with similar consent), railroad control even without 
consent if needed for military purposes, conciliation of 
industrial disputes, if not confined to a single state, 
immigration, influx of criminals, and other minor mat- 
ters. It is interesting to notice the use that is made of 
the principle of concurrent jurisdiction. The German 
constitution had, as we have seen, deliberately adopted 
this plan. The British North America Act, on the 
other hand, tries to indicate the powers of Dominion 
and provincial governments as exclusive of one another; 
in practice this has led to confusion. In Australia only 
a few of the powers are expressly declared exclu- 
sive (§ 52). In the majority of instances the state 
government may act where the federal government has 
not done so. But, as in the German Empire, " When 
the law of a state is inconsistent with a law of the 
commonwealth the latter shall prevail." This last 
provision must not be misunderstood. The law of the 
commonwealth in question must not transcend the con- 
stitutional power of the federal parliament, otherwise 
its application can be declared invalid by the courts, 
just as in America. 

6. Conclusions. From the foregoing comparison of 
the chief federations of the nineteenth century, im})or- 
tant conclusions are to be drawn. There is manifest 



254 THE STRUCTURE OF THE GOVERNMENT 

throughout the tendency to entrust the central or na- 
tional government with a wider and wider sphere of 
authority. For this several reasons are to be assigned. 
In the first place it represents a process that is alto- 
gether natural, and which may rightly be spoken of 
as organic. The units of the federation once brought 
into contact begin to grow together, and to be knit 
into a more and more united body. The original jeal- 
ousy and particularism of the separate parts are grad- 
ually merged into the wider outlook that accompanies 
a larger national life ; the central government of the 
federation becomes a part and parcel of each individ- 
ual citizen, and enlists in its support a broader patri- 
otism than narrow adherence to the interests of his 
section of the community. Where the sense of natu- 
ral greatness is involved constitutional limitations can 
be overridden with public approval ; the addition of 
Louisiana to the territory of the United States at 
onoe suggests itself in illustration. An equally potent 
factor leading to the extension of federal power is 
found in the material conditions of modern life. Rapid 
transportation, the telegraph, and the evolution of 
production and commerce on a scale undreamed of 
at the making of the Constitution have broken down 
the economic barriers that once existed. Communi- 
ties that were originally absolutely distinct in tlieir 
economic and social life have undergone a complete 
industrial amalgamation. Each administers to the 
wants of the other, and each in turn receives a benefit. 
The wheatfields of the Dakotas and the factories of 
Massachusetts are complementary to one another. 
Where industry and commerce are thus fused into a 



FEDERAL GOVERNMENT 255 

single economic life, it is impossible to separate the 
control of them into distinct territorial districts. It 
becomes an absolute necessity that the powers of the 
federal government must be either so expressed or so 
interpreted as to cover the whole range of economic 
life that has passed the bounds of the component 
"states" and become national. It is for this reason 
that the process of addition to federal power may be 
expected to continue in the future. Before the intrud- 
ing forces of industrial civilization " state lines " are 
becoming more and more meaningless. Moreover, the 
true path to be followed has been already indicated by 
the German and Australian constitutions. By adopting 
the plan of concurrent jurisdiction and leaving it to the 
central government to occupy the field in proportion 
as the progress of national evolution demands it, a way 
is open for continued expansion without suffering the 
pangs of amendment, or relying upon the strained in- 
terpretation of the law. 

We have still left out of consideration the question 
of how the American Constitution, made at a time when 
local jealousies prescribed the most grudging admission 
of federal power, is able to adapt itself to the changed 
situation of to-day. That this is not done by legal amend- 
ment has been already shown : the amending machinery 
of the Constitution is so rigid and immovable that it is 
valueless for the kind of adaptation here demanded. 
But instead of technical amendment a process of virtual 
amendment has been effected continuously through tlie 
nineteenth century by the interpretation given to the 
Constitution by the courts. The Constitution is fortu- 
nately an elastic document, capable of meaning much or 



256 THE STRUCTURE OF THE GOVERNMENT 

little at tbe will of its interpreter. Tlie courts therefore 
liaye fallen back on the doctrine of " implied powers, " 
and have stretched the Constitution to cover things 
never contemplated in its literal meaning. " A power 
vested," said Chief-Justice Marshall, " carries with it 
all those incidental powers which are necessary to its 
complete and efficient execution." The purchase of 
Louisiana, the Embargo Act of 1807, grants of land for 
railroads and canals, the annexation of Texas, grants 
of land for agricultural colleges, etc., are not things 
for which direct authority can be found in the enu- 
merated powers of the federal government.^ It is by- 
interpretation only that Congress has the power to 
issue paper money, to make anything it wills legal ten- 
der, to charter and regulate national banks, to claim a 
monopoly of the postal service. It is probable that, if 
future needs demand it, the Constitution can be held to 
permit the national government to build, buy, and own 
railroads, and to monopolize the telegraph service. 
That this device of latitudinarian interpretation has 
filled a most useful historical purpose is beyond a 
doubt. It is an excellent example of the political 
genius inherent in the Anglo-Saxon temperament, that 
the difficulty created by the error in making amendment 
so rigid should be surmounted by so simple and natural 
a remedy. The error remains an error nevertheless. 
The Swiss or Australian system, whereby recurring 
amendment is part of the life of the constitution, is 
greatly to be preferred. 

^ See Andrews, Manual of the Constitution, p. 135. 



FEDERAL GOVERNMENT 257 

READINGS SUGGESTED 
Sidgwick, H., Development of European Polity (1903), Lectures 

IK and XXIX. 
The Federalist, Essays XV, XVI, XVII. 
Fiske, J., American Political Ideas (1902), Lecture 11. 

FURTHER AUTHORITIES 
Story, J., Commentaries on the Constitution of the United States 

(oth edition, 1891). 
Curtis, G. T., Constitutional History of the United States, vol. i 

(1896). 
Vincent, J. M., Government in Switzerland (1900). 
Moore, H., The Commonwealth of Australia (1902). 
Bourinot, Sir John, Manual of the Constitutional History of 

Canada (1888). 
Freeman, E. A., History of Federal Government (1863). 
Dareste, F. R., Les Constitutions Modernes (1891). 
Laband, Staatsrecht des Deutschen Reiches (4th edition, 1901). 
Constitution of the Confederate States of America (see Curtis, 

Constitutional History, vol. ii, appendix), 
Stephens, A. H., A Constitutional View of the "War between the 

States (1867-70). 
Merriam, C. E., History of the Theory of Sovereignty since Rous- 
seau (1900). 
Doyle, J. A., English in America (1887). 
Andrews, E. W., Manual of the Constitution of the United States 

(1887). 



CHAPTER VI 

COLONIAL GOVERNMENT 

1. The Acquisition of Dependencies. — 2. Colonies of the Ancient 
World. — 3, Colonial Expansion after the Discovery of the Sea 
Route to the East Indies and the Discovery of America; Spanish 
Colonial System, — 4. Colonial Policy of England and France in the 
Seventeenth and Eighteenth Centuries. — 5. The American Revolu- 
tion. — 6. Alteration of British Colonial Policy in the Nineteenth 
Century ; Establishment of Self-Government. — 7. Present British 
System of Colonial Administration. — 8. Imperial Federation. — 
9. Recent Colonial Expansion of European States. — 10. The De- 
pendencies of the United States. 

1. The Acquisition of Dependencies. Taking 
the word colony in its widest sense to inchide all kinds 
of dependencies, we are met by the fact that the colo- 
nies of the world occupy two fifths of the land surface 
of the globe, and contain a population of half a bil- 
lion people. Great Britain has at least 374,000,000 
colonial subjects, France 41,653,000, the Netherlands 
38,000,000, Belgium 15,000,000, and Germany about 
13,946,000.1 The political status of the communities 
thus controlled presents the greatest diversity. In the 
strict theory of law each of them is under the abso- 
lute dominion of the sovereign state to which it " be- 
longs." In practice they vary, from the virtual inde- 
pendence enjoyed by Canada and Australia to the total 
dependence of Gibraltar or Madagascar. The vast 

^ Statistics from the Statesman's Year Book of 1912. 



COLONIAL GOVERNMENT 259 

extent and the great natural resources of the modern 
colonial area indicate its importance in the future his- 
tory of the world. The realization of this by the great 
powers has led, during the past twenty-five years, to a 
renewed colonial expansion, in which practically all 
the " unclaimed " territory of the world has been par- 
titioned among the leading states. The subject of colo- 
nial administration, both political and economic, has 
taken on, in consequence, an increased interest, and 
attention is more and more directed to the study of the 
systematic management of dependencies. The recent 
expansion of the United States resulting from the war 
with Spain has rendered this portion of the study of 
government one of especial consequence to Americans. 
The present chapter, therefore, will be directed towards 
an inquiry into the origin and evolution of colonial gov- 
ernment, the different systems of administration now 
employed, and the question of the political future of col- 
onies. Throughout the chapter it will be proper to de- 
vote most attention to the colonies of the United King- 
dom. Great Britain has been, "par excellence^ and still 
is, the colonizing country ; and it is by the British gov- 
ernment, in a somewhat groping and half-conscious way, 
that what may be called the modern system of colonial 
administration has been worked out. The new depen- 
dencies of the United States will be examined in con- 
clusion in order that their present government may be 
discussed in the light of British experience in the past. 
A sovereign state comes to possess dependencies in 
various ways. The simplest is that of conquest, by 
which the vanquished community is subjected to the 
rule of its victors. Such was the case with the ex- 



260 THE STRUCTURE OF THE GOVERNMENT 

pansion of Rome, whose " provinces " were countries 
conquered by the Roman arms. The Spanish colonies 
of Mexico and Peru, and the British dominions in 
India, were the fruits of conquest. Closely akin to this 
is the acquisition of a colony by cession. A country 
possessing a colony may be compelled by defeat in war 
to cede the colony as the price of peace, or induced 
from commercial reasons to sell it. The numerous 
treaties of the eighteenth century, whereby France and 
England handed their colonial possessions back and 
forward, were of this sort. The cession of Canada by 
France (1763), and of the Philippines by Spain (1898), 
are instances of colonial acquisition by war, while the 
purchase of Louisiana (1803) illustrates the purely 
financial process of acquisition. In addition to these 
two modes of colonial aggrandizement there remains 
what may be called, jiar excellence^ the colonizing 
process, namely, that of occupation and settlement. In 
this case the claim to the colony rests, if not on actual 
discovery of the land (Newfoundland, Australia, etc.), 
at any rate on priority of actual occupation. Where 
a native population is found in fixed agricultural settle- 
ments, the assumption of control approximates to con- 
quest. But where the native population is sparse and 
migratory, merely wandering over the land in nomadic 
fashion, living on the bounty of nature and the fruits 
of the chase, their presence ought not to invalidate the 
claim of immigrants proposing to make a permanent 
and fixed settlement. Much sentiment has been wasted 
over the supposed claim of the Indians to the continent 
of North America. When it is recalled that the whole 
Indian population, from Newfoundland to Florida, and 



COLONIAL GOVERNMENT 261 

from tlie Mississippi to the sea, was about as numer- 
ous as the inhabitants of a large American city (prob- 
ably about 200,000), and that its settlements were 
only in a few places fixed and agricultural, its " claim " 
to ownership of the whole country becomes somewhat 
absurd. One may well ask how far such reasoning should 
be carried. Did the few starveling bushmen of the des- 
ert and forest of Australia own the whole continent ? 
Without accepting the brutal code of the right of the 
strongest, one may in all reasonableness recognize the 
right of civilized nations to the acquisition of territory 
which is only " squatted upon " by wandering savages. 
2. Colonies of the Ancient World. Of the colo- 
nies of the ancient world those of Greece and Phoe- 
nicia along the shores of the Mediterranean are the 
most noteworthy. The Phoenician settlements were for 
the most part merely trading stations, but there were 
exceptions also (such as Carthage) in which a large 
body of emigrants established a permanent agricultural 
settlement. The colonies of Greece were on a larger 
scale : they resulted first of all from the Dorian inva- 
sion of the Peloponnesus about 1000 b. C, which drove 
many fugitives to seek new homes. Similarly the con- 
quests of the Spartans and the inroads of the Persians 
occasioned a scattering of some of the conquered tribes. 
Other colonies were due to the political dissensions 
with which tlie restless city states of Greece were rife 
and which sometimes resulted in the deliberate with- 
drawal of a part of the citizens to found a new city 
elsewhere. But the establishment of Greek and Plioe- 
nician colonies did not involve wliat we now think of 
as colonial government. Athens, indeed, succeeded in 



262 THE STRUCTURE OF THE GOVERNMENT 

exacting money tribute from the cities she had planted 
in the ^gean Sea, basing her claim on the naval pro- 
tection afforded them. But the general practice was to 
regard a colony as an independent political unit from 
its inception. It was an emigration, an " outswarming '* 
of freemen who carried with them the same right of 
self-government that they had had in their former home. 
A somewhat different type of colony made by settle- 
ment in ancient times is seen in the Roman colonia. 
This was a settlement of Roman soldiers on land allotted 
to them by their general after it had been conquered ; 
here the prime object was to create a frontier defense 
of the empire, but these colonies often developed into 
permanent settlements. 

3. Colonial Expansion after the Discovery of 
the Sea Route to the East Indies and the Discov- 
ery of America ; Spanish Colonial System. It is 
with the discovery of the sea route to the East Indies 
and of America that modern colonization begins. The 
sixteenth century opened to the adventurous spirits of 
Europe a wonderland of unknown countries, in which 
to satisfy their passion for exploration and adventure, 
their lust for gold, their chivalrous ambition to increase 
the dominions of their king, and their pious desire to 
spread the Christian religion to the uttermost parts of 
the earth. It was in this age of adventure and conquest 
that Spanish and Portuguese colonial aggrandizement 
acquired the peculiar characteristics of domination and 
levying of tribute which proved its ruin. The Portu- 
guese, sailing around the Cape of Good Hope, secured 
a monopoly of the rich trade of the East. Thither their 
merchants flocked in great nimibers, setting up trading 



COLONIAL GOVERNMENT 263 

stations on the coast of Africa (Sofala, Zanzibar), on 
the shores of the Indian Ocean (Goa, Malacca, etc.), 
among the East India Islands, and even in China and 
Japan (1542). In Brazil, partly by sending over exiled 
Jews and transported criminals, they founded a planta- 
tion colony in which the sugar cane was cultivated and to 
which slaves were early introduced from the coast of 
Guinea. Feudal grants of land were made to nobles of 
Portugal with almost absolute power over the natives. 
The Spaniards, equally adventurous, directed them- 
selves not to the East, but to the West Indies, and to 
the mainland of Central and Southern America. A bull 
of Pope Alexander VI (1493) had divided the unchris- 
tian world with magnificent generosity between Spain 
and Portugal ; Spain was to have the western world, 
Portugal the east. A revision of the shares by treaty 
gave Brazil and Labrador to Portugal and all the rest 
of America to Spain. The Spaniards proceeded to 
make good this shadowy claim by vigorous conquest. 
By the year 1510, Cuba, Hispaniola, Porto Rico, 
Jamaica, and other islands had fallen an easy prey. 
Mexico was conquered by Cortes (1519-21), and Peru 
fell before the brutal conqueror Francis Pizarro (1525- 
35). Thence Spanish dominion spread over the whole 
of Central and South America, except Brazil. 

From the very beginning, however, the colonial sys- 
tem of Spain^ had taken a false bias. The colonial es- 
tablishments were regarded solely as a source of profit 
to the conquerors. There was no question of real self- 
government or liberty of trade. A recent writer^ has 

^ See Ziminermann, Die Europdischen Kolonien, vol. i (1890). 
2 Professor Blackmar, U. S. Bureau of Statistics Publication, Colo- 
nial Administration (1901). 



264 THE STRUCTURE OF THE GOVERNMENT 

thus described the Spanish system of administration in 
the centuries which followed : " All the laws, the con- 
trol of trade, commerce, agriculture, finance, taxation, 
the foundation of municipalities, the management of the 
natives, and the regulation of religion were made in the 
m.other country, and sent to the colonies with the expec- 
tation that the colonies would adapt themselves to the 
laws. Nor did the decrees of the crown and its agencies 
stop here, but the home bureau organized the colonial 
government, local and central. The officers and rulers 
were natives of Spain sent out to rule their distant de- 
pendencies. During the Spanish domination in Amer- 
ica nearly all the important offices of the state and 
church had been filled by Spaniards. The presidents 
and judges of the courts were from Spain. There were 
18 Americans out of 672 viceroys, captains-general, and 
governors ; and 105 native bishops out of 706 who ruled 
in the colonies. This system of officialism continued in 
all of the colonial possessions of Spain to the close of 
the present [the nineteenth] century." In matters of 
trade and industry the Spanish colonies were under the 
most stringent regulation. They could trade with no 
other country but Spain itself, and even then only 
through the organization known as the Casa de Contra- 
tacion, which held a monopol}^ That such a system 
contained in itself the seeds of its own ruin is only too 
evident. The revolt of the Spanish colonies and the 
establishment of their independence in the early part 
of the nineteenth century were the natural outcome of 
such a vicious and short-sighted colonial policy. 

4. Colonial Policy of England and France in 
the Seventeenth and Eighteenth Centuries. Al- 



COLONIAL GOVERNMENT 265 

though England and France were early in the field 
with voyages of exploration (Cabot, 1497, Cartier, 
1534) the establishment of their American colonies 
belongs to the seventeenth century. With Champlain's 
permanent settlement on the St. Lawrence (1608), and 
the landing of the Pilgrim Fathers (1620) the begin- 
nings were laid of New France and New England. 
From the grant of the charter to the Virginia Com- 
pany, 1606, dates the commencement of the plantation 
colonies of the South. That the English colonies 
grew and flourished on the Atlantic is to be attributed 
to the good fortune of the English government, rather 
than to its political foresight. The sterling qualities 
of the colonists themselves, animated by the high 
purpose of religious refugees, or by the daring of 
adventurers, had much to do with their success. It 
was through the neglect, and not by the policy, of the 
home government, that the colonists acquired their 
political right of self-government. The charter granted 
to the Massachusetts Bay Company in 1629 was 
intended by the government as a sort of commercial 
instrument for the conduct and governance of a trad- 
ing company. It was the emigration of the ofBcers 
and the company itself to the shores of America which 
converted it into a political constitution. In the seven- 
teenth century tlie English in general did not dream 
of the magnitude of the colonial empire which lay 
within their reach. In this their colonial policy was 
sharply contrasted with that of France. The French 
government early recognized the possibilities of Ameri- 
can colonization ; they realized the value of the St. Law- 
rence and the Mississippi as opening the way to the 



266 THE STRUCTURE OF THE GOVERNMENT 

interior of tiie continent, and planned a vast colonial 
empire which should encircle the narrow English 
settlement of the Atlantic seaboard. The English 
government in the seventeenth century gave little or 
no help to its dependencies ; the French were ready 
from the first with money and ships to be used in the 
upbuilding of New France. It has been part of the 
irony of history that the magnificent empire thus 
planned by the French should have passed by the 
fortune of war into the hands of the British crown. 

But before the close of the seventeenth century, the 
American colouies, from their growth in population and 
the development of their resources, began to assume a 
new importance. The colonial trade offered a harvest to 
the merchants of the mother country, and supplied a new 
bone of contention to vex the long-standing quarrels of 
England and France. Indifferent as the British gov- 
ernment had been to the political position of its earlier 
colonists, it adopted in reference to the growing trade 
of the colonies a policy much resembling that of Spain. 
So too did the French, whose colonial schemes included, 
of course, the profit to be derived by the mother coun- 
try from the natural wealth of its possessions. Already 
in the reign of Charles II the navigation acts ^ had 
placed restrictions on colonial commerce. By the first 
of these (1660) foreign ships were forbidden to trade 
with the colonies. All colonial sugar, tobacco, cotton, 
indiofo, and other enumerated articles were to be sent 
only to England, or to an English possession; nor could 

1 For the contents of the navig-ation acts and a criticism of British 
colonial policy involved, the student may consult Egerton, Short His- 
tory of British Colonial Policy, a really admirable work. 



COLONIAL GOVERNMENT 267 

foreigners become mercliants in an English colony. 
A new act of 1663 kept out all ships that had been 
built in foreign countries. An act of 1664 obliged 
European goods, even if placed in English ships, to be 
first landed in England before being exported to the 
colonies. Finally, an act of 1672 made goods passing 
from colony to colony liable to whatever customs du- 
ties they would have incurred if brought into England. 
These are the famous navigation acts which formed the 
basis of the English colonial policy of the eighteenth 
century. It was necessary indeed to modify them by 
making concessions to the colonists where they became 
too burdensome. The trade in wine and fish between 
Portugal and Xew England was made an exception. 
On the other hand the acts were reenforced by a num- 
ber of statutes in the early part of the eighteenth cen- 
tury. Such a commercial code, if applied to a modern 
colony, would appear monstrous. It can however be 
said in defense of the acts, that they helj^ed to encour- 
age the growth of British and colonial shipping, and 
thus contributed to the national defense of both the 
mother country and the colonies. Nor did the restric- 
tions laid upon trade press as severely upon the colonies 
as might be imagined. Evasion of the laws was notorious, 
and in any case the natural direction of commerce was to 
the British Isles. Less defense can be found for the pol- 
icy of Great Britain in legislating in the eighteenth cen- 
tury against colonial manufactures. "The creating of 
manufactures in the colonies," ran a resolution of the 
British House of Commons in 1719, "tends to lessen 
their dependence on Great Britain." In accordance 
with this a statute of that year, fortunately applied only 



268 THE STRUCTURE OF THE GOVERNMENT 

in part, forbade all forms of iron manufacture in the 
American colonies. Indeed, when all is said, the whole 
code of commercial and industrial regulation must be 
considered as the outcome of the inveterate European 
habit of viewing colonial establishments as a source 
of mercantile profit. " The deliberate selfishness of 
English commercial legislation," says Mr. Lecky, "was 
digging a chasm between the mother country and her 
colonies, which must inevitably, when the latter had be- 
come sufficiently strong, lead to separation." ^ 

5. The American Revolution. The quarrel be- 
tween England and her American colonies which ended 
finally in independence is the most important fact in the 
evolution of colonial government. It showed to the world 
the elementary fact of colonial administration, that no 
civilized colony of size and increasing population can 
be kept in a state of permanent political tutelage. It 
led England to adopt, not immediately but ultimately, 
the policy of colonial autonomy. What had previously 
been done through neglect was now sanctioned by the 
teaching of experience. Yet, as in every quarrel, there 
were certainly two sides to the question. On the one 
side was the righteous protest of a free people against 
political dictation, against that " taxation without re- 
presentation," the very sound of which is repugnant to 
Anglo-Saxon ears : on the other side were pressing 
needs of imperial defense.^ The patriotism of national 
historians has long obscured the one or the other of 

1 W. E. H. Lecky, History of England in the Eighteenth Century, vol. 
iii, chap. xii. 

^ The Eng-lish side of the controversy is to be found in Lecky, 
History of England in the Eighteenth Century, vol. iii, chap, xii ; and 
Eg-erton, Short History of British Colonial Policy, bk. ii (passim). 



COLONIAL GOVERNMENT 269 

the two sides of the controversy ; it is only after a 
lapse of a century and a half that a clearer vision is 
becoming possible. That the American resistance to 
imperial taxation in the form in which it came to them 
was justified seems beyond a doubt. But the colonies 
were equally wrong in adopting towards the vexed 
question of imperial finance the selfish inertia of in- 
difference. Unkindly critics have not scrupled to say 
that it was not " taxation without representation " that 
they resented, but taxation in any form and by any 
authority. The strain on the imperial treasury of pro- 
tecting British subjects, both home and colonial, against 
foreign powers had been great. The successive wars 
against France — King William's war (1689-97), Queen 
Anne's war (1702-13), King George's war (1744-48), 
and the French war (1756-63), to give them the 
names by which they were known to the colonists — 
had increased the national debt at an alarming rate. 
Amounting in 1702 to a little over twelve and a half 
millions pounds, it stood at over one hundred and thirty- 
two millions at the Peace of Paris (1763). Much of 
this had been spent in defense of the American posses- 
sions. The colonies indeed had contributed, in separate 
fashion and in unequal proportion, both money and men 
to aid the British arms in America. It was a colonial 
expedition that captured Louisburg in 1745, the money 
thus spent being partly reimbursed by a parliamentary 
grant from Great Britain. But colonial contributions 
for defense were irregular and unequal. The colonies 
removed from the scene of immediate danger were in- 
clined to shirk responsibility altogetlier. During King 
George's war the New York Assembly proved quite 



270 THE STRUCTURE OF THE GOVERNMENT 

intractable. At first they would do nothing for defense ; 
later they contributed money sparingly for the Louis- 
burg expedition, but would send no men. New Jersey 
was an inveterate delinquent. Sheltered by the adja- 
cent colonies from the actual ravages of frontier 
warfare, she was never ready to make adequate contri- 
bution towards the common defense. In Queen Anne's 
war the Assembly struggled hard to prevent the raising 
of a military force, and was only forced into doing so 
by the packing of the house. Contributions were made 
to King George's war, but in the great final struggle 
of the French war New Jersey remained culpably in- 
active.^ These were not isolated instances, but were 
characteristic of the difficulty of obtaining joint action 
from the colonial governments. Mr. Lecky thus de- 
scribes the situation: "In order to raise the money for 
the support of the American army it was necessary to 
have the assent of no less than seventeen colonial as- 
semblies. The hopelessness of attempting to fulfill 
these conditions was very manifest. If in the agonies 
of a great war it had been found impossible to in- 
duce the colonies to act together ; if the Southern col- 
onies long refused to assist the Northern ones in their 
struggle against France because they were far from 
the danger ; if South Carolina, when reluctantly raising 
troops for the war, stipulated that they should act only 
within their own province ; if New England would give 
little or no assistance while the Indians were carrying 
desolation over Virginia and Pennsylvania, what chance 
was there that all these colonies would agree in time 

^ See Lodge, Short History of the English Colonies in America, chap. 



COLONIAL GOVERNMENT 271 

of peace to propose uniform and proportionate taxation 
on themselves in support of an Englisli army ? " The 
financial difficulty to be faced was thus an actual one, 
though aggravated by the mistaken policy of the Brit- 
ish crown. The colonies and the mother country had 
reached an impasse ; further continuance on the exist- 
ing basis was no longer possible ; the only solution 
could have been found in a joint revision of inter- 
imperial relations ; this the dull stupidity of the Eng- 
lish administration and the willful inertia and mutual 
jealousies of the colonies rendered impossible.^ It is 
of importance properly to appreciate the historic situ- 
ation thus created ; for the relative financial situation 
of Britain and her colonies is now reproducing itself 
on the horizon of the twentieth century. To this at- 
tention will be directed later. 

6. Alteration of British Colonial Policy in the 
Nineteenth Century; Establishment of Self -Gov- 
ernment. In what has been said above it is not meant 
to imply that the sj^stem of self-government in the col- 
onies was established at once after the American Revo- 
lution. Indeed, for the time being, the case was rather 
the contrary. The king and his ministers, attributing 
the disaster of their colonial system to the license al- 
lowed to the colonial assemblies, were inclined to tighten 
their grip upon their remaining dependencies. The 
Quebec act of 1774 established royal government in 
Canada with no elective assembly, but only a council 

^ The rejection of the scheme of the Albany congress (1754), re- 
jected by both mother country and colonies ; the recognition by 
various colonial governors of insight, of the need of union and joint 
taxation ; Governor Pownall's proposition of an imperial customs 
union — may be reckoned among the signs of the times. 



272 THE STRUCTURE OF THE GOVERNMENT 

nominated by the crown. Even under Pitt's constitu- 
tional act of 1791 the measure of liberty granted to 
the Canadians, and intended to reward the allegiance 
of the Loyalists, consisted only in the right to elect the 
members of the lower house in each of two provinces. 
The governor, the executive council, and the legislative 
council or upper house, were all appointed by the crown. 
The same is true of the other North American colonies. 
Those that already had partial self-government (as 
Nova Scotia, Barbadoes, Jamaica, Bermuda) were not 
deprived of it, but those newly acquired (Trinidad, 
etc.) were kept under crown government. Cape Colony, 
definitely ceded in 1815, remained under military gov- 
ernment till 1835. Even then the civil government 
established was a nominated and not an elective one. 
Self-government being out of the question in a penal 
settlement, Australia remained long in direct depend- 
ence on the crown. But the lesson taught by the 
American Revolution had nevertheless been effective. 
As the new colonies grew in population and importance, 
the opinion gained strength that both justice and ex- 
pedienc}^ demanded that they should administer their 
own affairs. Even on commercial principles it was 
thought that colonial liberty was more profitable than 
colonial bondage. The doctrines of the political econo- 
mists which became in the middle of the century the 
official creed of the English government, brought about 
the establishment of free trade (1846) and the repeal 
of what was left of the navigation acts (1849). Already 
before this the serious rebellion in Canada (1837) and 
Lord Durham's report, strongly recommending the 
establishment of responsible government, had called 



COLONIAL GOVERNMENT 273 

public attention to dangers of the existing sys- 
tem. The Act of Union of 1840, joining Upper and 
Lower Canada into one, introduced the principle of 
parliamentary self-government. Before the end of 
the next decade the same "enfranchisement" was 
extended to the other provinces of British North 
America (Nova Scotia and New Brunswick, 1848, 
Prince Edward Island, 1851, and Newfoundland, 
1855), and to all the other colonies in a position to 
receive it.^ 

It is interesting and instructive to observe the atti- 
tude adopted in England towards the colonies at the 
time of the grant of self-government, and in the period 
immediately following. In the first place two great 
questions of paramount interest in the colonial policy 
of the present day were left entirely out of sight, — 
the tariff relations of the colonies with the mother 
country, and the question of imperial defense. That 
the tariff should have passed unconsidered was entirely 
to be expected in the light of the ideas then prevalent ; 
indeed the question seemed to have settled itself in the 
course of nature, and the optimistic free-traders of the 
middle of the century took it for granted that tariff 
barriers were soon destined to disappear the world 
over. It seemed unnecessary, therefore, to stipulate 
for free trade or any form of customs union between 
the United Kingdom and its dependencies. The other 

^ New Zealand received responsible government by an Act of 1852, 
as interpreted in 185G; New South Wales and Victoria, 1855; South 
Australia and Tasmania, 1850 ; Queensland, 1859 ; Cape Colony, 1872 ; 
Western Australia, 1890. 



274 THE STRUCTURE OF THE GOVERNMENT 

problem, that of imperial defense, was also passed over ; 
perhaps by virtue of the very difficulty of its solution, 
perhaps as a result of the sanguine hopes that had been 
fostered in the peace era. The policy adopted was not 
everywhere approved. Disraeli, speaking in 1872, and 
foreseeing with characteristic prescience the difficul- 
ties that must arise, pronounced it a mistake. " Self- 
government," he said, "ought to have been conceded 
as part of a great policy of imperial consolidation. It 
ought to have been accompanied by an imperial tariff 
. . . and by a military code which should have pre- 
cisely defined the means and the responsibilities by 
which the colonies should be defended, and by which, 
if necessary, this country should call for aid from the 
colonies themselves." 

But the real secret of the willingness of the English 
people to leave the government of the colonies in the 
hands of the colonists themselves lay in the new view 
that was becoming current as to the "manifest destiny" 
of the British colonies.^ The example of the rise and 
progress of the United States seemed to point towards 
the inevitable future of all great dependencies inhabited 
by an enlightened and increasing population. Independ- 
ence seemed only a question of time, and the duty of 
the mother country was to give the colonies a sound 
political education in the methods of responsible gov- 
ernment, and when the destined hour came to let them 
depart in peace. The views of the "little Englanders," 
of the Manchester school of economists, averse to large 
military and naval expenditures, cosmopolitan in their 

1 For interesting- details in this connection see B. Holland, Imperium 
et Libertas (1901). 



COLONIAL GOVERNMENT 275 

sympathies and sanguine in their hopes of the commer- 
cial unity of the world, powerfully stimulated jDublic 
feeling in this direction. It is astonishing at the present 
date to look back on the opinion then prevalent. Sir 
F. Rogers (afterwards Lord Blachford), who for eleveu 
years was permanent under-secretary for the colonies 
(1860-71), wrote at a later date (1885) of the views 
he held in the following terms : " I had always believed, 
— and the belief has so far confirmed and consolidated 
itself, that I can hardly realize the possibility of any 
one seriously thinking the contrary — that the destiny 
of our colonies is independence : and that in this point 
of view the function of the Colonial Office is to secure 
that our connection, while it lasts, shall be as profitable 
to both parties, and our separation, when it comes, as 
amicable as possible." Such views were only too com- 
mon in the period of colonial history from 1840 to 1880. 
Payne, in his "History of European Colonies" (1877), 
designed as an educational work for English schools, 
wrote : " Canada and Victoria are bound to England 
by a tie so slight that its rupture would not at all be 
dreaded; and such a rupture would hardly be felt 
whenever it happened." Great indeed is the contrast 
between such a point of view and the sentiments now 
entertained both in Great Britain and the colonies, of 
the relations of the dependencies to the mother country. 
But before considering the new imperialism and its polit- 
ical consequences, it will be best to pass briefly in review 
the varied systems of government at present obtaining 
in the colonial possessions of the, United Kingdom. 

7. Present British System of Colonial Admin- 
istration. First let us consider the general principles 



276 THE STRUCTURE OF THE GOVERNMENT^ 

which are adopted in the management of the British 
colonial possessions. Some persons indeed might deny 
that there are any general principles involved ; for it is 
contrary to the spirit of British institutions to act on a 
formal and preconceived plan, and the method adopted 
is rather a habitual way of doing things, based on the 
teaching of experience, than a scientific and complete 
system of administration. The British system, if the 
word may be allowed, recognizes no absolute right of 
self-government. It aims, in the words of Earl Grey, 
to allow " the inhabitants to govern themselves when 
sufficiently civilized to do so with advantage" and, 
where this is not the case, to provide " a just and im- 
partial administration of those colonies of which the 
population is too ignorant and unenlightened to manage 
its own affairs." It is recognized therefore that the 
government adopted in each colony must be in accord 
with the particular conditions presented, must vary 
according to the race, character, and number of the 
population, their degree of enlightenment, the extent 
of the territory, and (as in the case of Gibraltar) with 
the possible military importance of the place for the 
defense of the empire. Within these limits the princi- 
ple obtains that a colonial community of which the great 
majority is made of civilized whites shall be granted 
the fullest autonomy; while to the other colonies shall 
be extended such a measure of self-government as 
their circumstances seem rightly to demand. The prin- 
ciple of political training for future self-government, 
as is seen in the case of the elected municipal bodies in 
India, is also recognized. In the case of every colony, 
however, the crown retains a certain power of control ; 



COLONIAL GOVERNMENT 277 

the governor, or executive head of the colony, some- 
times nominal, sometimes actual, is the nominee of the 
crown ; the crown reserves a veto on all colonial legis- 
lation ; the final court of appeal for colonial cases is the 
judicial committee of the Privy Council. 

Though resting on this general plan, the governments 
of the British colonies present the greatest range of 
diversity in the details of their political constitution. 
Various classifications have been offered, of which the 
most satisfactory seems to be the separation first of 
all into three great classes, — the crown colonies, 
the representative colonies, the responsible colonies. 
The crown colonies are those which have no self- 
government ; the representative colonies are those 
which have partial self-government; the responsible 
colonies are those which have complete self-govern- 
ment. These three divisions may be taken to indicate, 
not only the classification of the dependencies at any 
particular time, but also the stages through which a 
British colony passes in the upward progress. Canada, 
as has been seen, was a crown colony from its conquest 
until 1791, a representative colony until the act of 
1840, and since then a responsible colony. 

In the first of these divisions, the crown colonies 
(with which also the various protectorates are to be 
included), are comprised all those dependencies whose 
governing officials are all nominated by the crown. 
The list includes the Straits Settlements, Hong Kong, 
Fiji, Trinidad, Sierra Leone, Honduras, Gibraltar, St. 
Helena, and many other places. Witliin the group, 
however, various degrees of (h^])endence on the home 
government are found. In the places of great military 



278 THE STRUCTURE OF THE GOVERNMENT 

and naval importance (Gibraltar, St. Helena) and in 
dependencies containing but few wbite people, the con- 
trol of the crown is complete ; the nominated officials 
are appointed directly by the home government, and 
sent out to the colony. In Gibraltar the whole legisla- 
tive and executive authority is vested in the comman- 
der-in-chief, who is also governor. In other possessions, 
representing a higher stage of colonial evolution, and 
which contain a considerable element of white, or at 
least of educated native inhabitants, the control of the 
crown is less direct. In British Honduras, for example, 
the administration is conducted by a governor with a 
nominated executive council of five members, and a 
leo:islative council consistino^ of three ex-officio members 
and five others nominated by the crown from among 
the residents. The government of Hong Kong ap- 
proaches still more nearly to being representative. 
The governor has as his executive council a nominated 
body of eight members, six of whom (the secretary, 
the officer commanding the troops, the treasurer, the 
attornej^-general, the harbor master, and the director of 
public works) hold their positions ex officio. There is 
in addition a legislative council composed of the same 
ex-officio members together with the captain-superin- 
tendent of police and six unofficial members, — four 
appointed by the crown (two of these being Chinese), 
one nominated by the Chamber of Commerce, and one 
by the local justices of the peace. Such a body, it will 
be observed, stops just short of the principle of pop- 
ular election. The details here given are not of im- 
portance in themselves, but are intended to show the 
careful grading of the British colonial government. 



COLONIAL GOVERNMENT 279 

The representative colonies are those in whose gov- 
ernment the principle of election has been introduced, 
without, however, being allowed to predominate. To 
this class belong Ceylon, Jamaica, Mauritius, the Baha- 
mas, Barbados, British Guiana, Bermuda, etc. Here 
again two degrees of relative dependence may be 
distinguished. In some of them (as Mauritius and. 
Jamaica) the legislature consists of a single body, a 
part of whose members are nominated and the rest 
elected; in others (as Barbados) the legislature con- 
sists of two houses, one entire house being elected by 
the people. But in all the representative systems, the 
officers of the executive are nominated, and the par- 
liamentary system of government does not obtain. The 
legislature (Council of Government) of Mauritius, made 
up of the governor, eight ex-officio members, with nine 
nominated by the governor and ten elected members, is 
typical of the first class. Barbados illustrates the second 
and more advanced type ; it has a bicameral legisla- 
ture, the upper house (Legislative Council) composed 
of nine members nominated by the crown, and the 
lower, or House of Assembly (twenty-four members), 
being elected annually by the people. 

At the apex of the system stand the really self-gov- 
erning, the responsible colonies, whose governments 
are modeled on that of the United Kingdom itself. 
These include Canada, Newfoundland, Australia (now 
federated). New Zealand, and the Union of South 
Africa. The last mentioned government was constituted 
under the South Africa Act of 1909 and includes the 
provinces of the Cape of Good Hope, Natal, the Trans- 
vaal, and the Orange Free State. The combination 



280 THE STRUCTURE OF THE GOVERNMENT 

thus formed is not a federation, but is unitary in struc- 
ture. The responsible colonies enjoy a virtual inde- 
pendence. Their governments have been created, as 
already seen in the case of Canada and Australia, by 
statutes of the British Parliament which are practically 
equivalent to written constitutions. With the excep- 
tion of the nomination of the governor-general (or gov- 
ernor, as the case may be), the reservation of the power 
of disallowing colonial statutes, and the retention of 
the judicial committee of the Privy Council as the 
final court of appeal, the home government withdraws 
from any internal control of the self-governing colonies. 
It must however be distinctly understood that in point 
of law this self-effacement of the imperial government 
is only operative at the pleasure of Parliament. The 
claim has indeed been raised in Canada that the grant 
to the Dominion Parliament of " exclusive legislative 
authority " over the matters enumerated in the British 
North America Act was " exclusive " of the authority of 
the Imperial Parliament itself. Such a contention is 
at variance with the very basis of the British constitu- 
tion, and cannot for a moment be accepted. But unless 
and until a statute of Parliament allows it, neither the 
crown nor any other authority in the mother country 
has any power over the colonies beyond that reserved 
in the constituent acts. 

These colonies are thus left free to manage their own 
internal concerns. This includes the very important 
privilege of making their own tariff. All of the autono- 
mous colonies have availed themselves of this, and have 
erected protective tariffs against the trade of the mother 
country. Though recently British goods have been ad- 



COLONIAL GOVERNMENT 281 

mitted into Canada, New Zealand, Australia, and South 
Africa^ at a preferential rate of duty, it was long true 
that the colonial tariffs placed British goods in the same 
position as those of a foreign countr3\ The colonies have 
not the power to conclude treaties with foreign states, 
but it has been the custom of Great Britain, in negoti- 
ating treaties affecting immediately the greater colonies, 
to give a ready hearing to the wishes of her colonial sub- 
jects. "It is an understanding or even maxim of the 
policy governing the relations between England and the 
Canadian Dominion," wrote the late Sir John Bourinot, 
the leading authority on the government of Canada, 
" that Canadian representatives shall be chosen and 
clothed with all necessary authority by the Queen in coun- 
cil to arrange treaties immediately affecting Canada, 
and all such treaties must be ratified by the Canadian 
Parliament." The form of government prevalent in the 
responsible colonies is virtually the same as in Eng- 
land, except that the existence of the constituent 
statutes introduces everywhere the principle of consti- 
tutional limitations analogous to what is found in the 
United States. The governor exercises a nominal 
authority similar to that of the crown. The real execu- 
tive is the prime minister and his cabinet, whose 
tenure of power is dependent upon the continued sup- 
port of the majority of the lower house. The Canadian 
senate is a nominated body of limited members, but 
the nominations are made on the advice of the ministr}^ 
and not, as in the representative colonial councils, at the 
pleasure of the crown. The same is true of the legis- 

1 Canada, Tariff Acts, 1897-1907 ; South Africa, 1903, New Zealand, 
1908, AustraUa, 1908. 



282 THE STRUCTURE OF THE GOVERNMENT 

lative councils of New Zealand and Newfoundland. The 
upper house of Australia is elective, and the Senate of 
South Africa partially so. 

India, whose conditions are altogether unique, stands 
apart from the rest of the British colonial system. Here 
a vast population, numbering in all about three hundred 
million and presenting the widest varieties of racial 
character, customs, and creeds, are more or less under the 
control of the United Kingdom. About seventy million 
of these are found in the semi-independent native states, 
the rest fall under the government of what is techni- 
cally called British India. The government of India is 
divided between the home authorities, the central gov- 
ernment in India, and the subordinate or provincial 
governments. At the head of the home government is 
the crown, acting through the secretary of state for 
India. With this secretary is adjoined a special coun- 
cil composed of former residents in India, holding office 
for ten years, and not eligible to sit in parliament. The 
expenditure of the Indian revenue must be sanctioned 
by the secretary and a majority of the council. All 
other business done in the United Kingdom in reference 
to India is conducted by means of the council, but in 
some matters of a diplomatic character, as in dealings 
with native states, the secretary acts alone. In India 
itself, the supreme executive power lies in the gover- 
nor-general, or viceroy, who is appointed by the crown. 
He has an executive council, which includes the 
commander-in-chief and the highest officials. For legis- 
lative purposes, the council is increased by sixteen 
members appointed by the viceroy. The provincial gov- 
ernments, under governors (appointed by the crown) or 



COLONIAL GOVERNMENT 283 

lieutenant-governors (appointed by the governor-gen- 
eral) or chief commissioners (appointed by the gover- 
nor-general in council) assisted by councils, are simi- 
lar in construction to the central government. There is 
thus no attempt at self-government in either the central 
or provincial administration of British India. It is 
only in the municipal governments (by virtue of acts 
of Parliament, 1882 and 1884) that the elective princi- 
ple has been introduced. Over the native states Britain 
exercises a varying degree of control. They contain no 
British officials, except an advisory resident ; they raise 
their own armies. But they can hold no diplomatic 
intercourse with one another or with the outside world, 
and have no right to make war or peace. Britain also 
reserves the penalty of dethronement as a punitive 
power over the native princes. 

8. Imperial Federation. The question of greatest 
interest in connection with the large self-governing col- 
onies of Great Britain is their political future. Their 
rapidly increasing population and the development of 
their natural resources throw into a strong light the 
important position they are destined to hold in the 
course of the century now opening. The idea of their 
manifest destiny as independent states, prevalent fifty 
years ago, has now receded into the background. The 
new wave of imperialism that has affected public opin- 
ion in all the great states of the world has fascinated 
the national ambitions of all the British subjects with 
the possibility of the future power of their colossal 
empire. The smaller destiny of isolated independence 
is set aside in favor of participating in the plenitude 
of power possible in union. The combined efforts of 



284 THE STRUCTURE OF THE GOVERNMENT 

Britain and the colonies called forth by the Transvaal 
War have done much to strengthen this feeling. But 
with the acceptance of this new point of view, the 
troubled question of interimperial relations again 
looms large upon the horizon. The question is almost 
identical with the great colonial controversy of the 
eighteenth century already discussed. But the frame 
of mind in which it is approached on both sides, and 
the riper political experience now available, remove it 
to another plane. Yet it does not seem possible that 
another generation can go by and find Canada and 
Australia still outside of the imperial councils; it hardly 
seems possible that the group of ministers who control 
the foreign policy of the empire can permanently re- 
main the appointees of the electorate of the British 
Isles, to the exclusion of the British dominions beyond 
the seas. If independence is no longer to be the future 
ideal of the colonies, and since geographical reasons 
forbid a complete amalgamation, it looks as if the mani- 
fest destiny of the colonial system must now be sought in 
imperial federation. The movement that has been made 
in that direction has enlisted the support of influential 
men in all parts of the empire ; but as yet they are 
only a minority. It seems, nevertheless, as if the con- 
tinued growth of the colonies, and the more and more 
imperative needs of imperial defense, will force the ques- 
tion to the front. The difficulty to be overcome is great. 
If a federal parliament is formed, it obviously will not 
exercise authority over the internal affairs of the Brit- 
ish Isles. There must therefore be two parliaments 
in Great Britain itself, the insular parliament and the 
supreme federal body. It will not therefore be sufficient 



COLONIAL GOVERNMENT 285 

to admit colonial representatives to the parliament at 
"Westminster, but will be necessary to totally reconstruct 
the legislative power in the United Kingdom. The 
dead weight of inertia to be encountered, before such 
a change can be effected, will be realized by all who 
are aquainted with the British political temperament. 

9. Recent Colonial Expansion of European 
States. But it is now necessary to turn to the consid- 
eration of the colonial expansion in recent times of 
the other great states of Europe, and the methods they 
have adopted in the administration of their depen- 
dencies. Since the year 1880 the territorial area 
claimed by the great powers as their dependencies has 
vastly increased. The available parts of Asia, and the 
unclaimed islands of the Pacific have fallen into Euro- 
pean hands; the largest prey has been found in the 
continent of Africa, which has practically been par- 
celed out among the great states. France, which had 
commenced the conquest of Algiers as early as 1830, 
has extended its possessions in north Africa, and holds 
not only all Algeria, but Tunis, French West Africa, 
the Sahara, Wadai, Senegal, French Guinea, the Ivory 
Coast, Dahomey, and French Congo. This territory in- 
cludes nearly all of the desert, the larger part of the val- 
ley of the Niger, and central Africa north of the Congo. 
The island of Madagascar was seized in 1895. France 
has also (beginning in 18G1) obtained a large part 
of Indo-China (forming the dependencies of Cochin 
China, Tonkin, Annam, and Cambodia). The French 
dependencies now include in all an area of 4,776,000 
square miles, and a population of 41,053,000 people. 
As the larger part of this area is occupied by an un- 



286 THE STRUCTURE OF THE GOVERNMENT 

civilized native population (in Madagascar, for ex- 
ample, there were in 1911 some seven thousand six 
hundred French in a population of 3,054,000), it has 
remained to a great extent either under military gov- 
ernment (as in central Africa) or under appointed offi- 
cials with military support (Madagascar, Indo-China). 
Where possible, however, in the older colonies of 
France, self-government is introduced ; Martinique and 
Guadaloupe have each elected councils ; so too has New 
Caledonia in the south Pacific, Algeria is governed as 
part of France, being divided into departments and re- 
presented in the Senate and in the Chamber of Deputies. 
Nowhere has more thought been directed to the theory 
of colonial government than in France, the largest part of 
the theoretical literature of recent times on the subject 
being French. In spite of the fact that the mainte- 
nance of the new colonial system proves a heavy burden 
on the French exchequer, the dream of a colonial em- 
pire persists. It is characteristic of the French people, 
that while the English still keep their vast colonial pos- 
sessions unrepresented in the parliament of the mother 
country, France has already adopted the principle of 
colonial representation. Cochin China, French India 
(Pondicherry and four other towns), Guiana, and Sene- 
gal each elect one deputy ; Guadaloupe, Martinique, 
and Reunion each elect two. These last three, as well as 
French India, are represented by one senator each. 

The expansion of Germany, which began in 1884, 
has taken the form of establishing " protectorates " 
and " spheres of influence," rather than colonial estab- 
lishments in the true sense. The territory thus brought 
into dependence on the German empire amounts to 



COLONIAL GOVERNMENT 287 

one million square miles. Most of it is in Africa, and 
is made up of Togoland, the Cameroons, German 
Southwest Africa, German East Africa, etc. The 
administration carried on by imperial governors, com- 
missioners, secretaries, etc., is similar to that of a Brit- 
ish crown colony of the primary type. There is scarcely 
any European population. Italy also has established 
African dependencies (Eritrea, Italian Somali Land) 
whose general character and whose administration are 
similar to those of Germany. The colonial posses- 
sions of the Netherlands, though not attributable to the 
recent European expansion, are of great wealth and 
importance. Their population outnumbers that of the 
mother country in the ratio of seven to one, although 
of the thirty-five million inhabitants less than one hun- 
dred thousand are white. The elective principle is no- 
where in use. The governor of the Dutch East Indies, 
the members of his assistant council, and the provincial 
" residents " and district " controllers " are all ap- 
pointed officials. The administration of the colony, how- 
ever, must be in accord with the principles laid down 
in a Dutch statute of 1854, for the " government of 
Netherlands India." 

10. The Dependencies of the United States. 
The most recent chapter in the history of colonial ex- 
pansion is offered by the acquisition on the part of the 
United States of a number of dependent territories. 
The Hawaiian Islands, annexed in 1898, may be passed 
over ; admitted to territorial status (1900) and having 
a government similar to that of the other territories 
of the United States, they are not to be looked upon 
as a dependency. But tlie case is different with the 



288 THE STRUCTURE OF THE GOVERNMENT 

islands acquired by cession from Spain (1898), as the 
result of the Spanish-American War (Porto Rico, the 
Philippines, Guam), and with Tutuila, Manua, etc., 
in the Samoan group, annexed in 1899 at the request 
of their inhabitants. Porto Rico, under the Organic 
Act of April 12, 1900, is controlled by a governor 
and an executive council appointed by the President 
of the United States, and a legislature of which the 
lower house is elected by the people, while the upper 
house consists of the executive council. Of this branch 
of the legislature at least five, out of a total of eleven, 
must be natives of the island. The principle here 
adopted of forming a legislative body by using an execu- 
tive council containing a number of natives, resembles 
somewhat the system already described as used in the 
government of British India. A revision of the Organic 
Act, the Olmstead Bill, — proposing to confer collective 
American citizenship on the people of Porto Rico, to 
create a partially elective senate, and to separate the 
executive and legislative functions of the government, 
— passed the House of Representatives in 1910. 

The government of the Philippine Islands has now 
passed the constructive stage. For some time after the 
defeat of Spain, and even after the formal cession of 
the islands, the administration remained in the hands 
of the military authorities. This was superseded by 
civil government (July 1, 1901) vested in a commis- 
sion of officials nominated by the President. An act 
of Congress (July, 1902) validated the creation of the 
civil government thus established, and the exercise of 
power granted to it by executive order. The same act 
contained a general bill of rights as a guarantee of in- 
dividual liberty and provided for the summons of an 



COLONIAL GOVERNMENT 289 

elected legislature after the pacification of the islands 
and the completion of a census. The central executive 
government now consists of a governor-general, who 
is also President of the Philippine Commission, ap- 
pointed by the President of the United States, and a 
commission, of eight members, four Americans and 
four Filipinos, likewise appointed. The Commission acts 
also as the upper house of the legislature, the lower 
branch, the Philippine Assembly, being elected on a 
four-years term by the Christian people of the islands.^ 
The acquisition of the above dependencies by the 
United States has occasioned in recent years a vast 
amount of discussion. It has been a matter of earnest 
debate as to whether the acquisition of such distant 
insular territory as the Philippines, peopled by races 
altogether alien, in part uncivilized, and in part openly 
hostile, was either just or profitable. Even the consti- 
tutionality of such a proceeding was widely denied. 
The last question has been set at rest by the interpreta- 
tion of the courts, and by the overwhelming force of ac- 
complished fact. The plain truth is that at the making 
of the Constitution, the acquisition of such territory as 
the Philippines was not considered, either one way or 
the other. The result is that in reality the Constitu- 
tion has nothing to say about it. But the convenient 
doctrine of implied powers has been made to meet the 
case. The question involving the keenest discussion 
was that of the tariff. It was held by many that the 
provision of the Constitution that the tariff must be 
uniform throughout the United States prevented Con- 
gress from making a tariff barrier between the repub- 

^ The Philippine Legislature elects two Resident Commissioners to 
the United States. 



290 THE STRUCTURE OF THE GOVERNMENT 

lie and its new dependencies. The Supreme Court, how- 
ever, in the Insular Cases of 1901, has decided that this 
is not the case. In consequence the action of Congress 
in setting up the present tariff ^ is constitutional. 

It may be observed in conclusion, that the tendency 
of the United States in dealing with its dependencies 
has been to proceed further in the direction of popular 
government than English experience would warrant. 
The system contemplated in the Philippines of institut- 
ing a lower house elected by the natives, would meet 
with no approval if suggested for the governance of 
British India. It has been difficult for Americans, in 
whose minds the principle of popular government has 
always assumed a more sharply theoretical form than 
is current with the English, to reconcile themselves to 
the "possession" of a dependent community. Common 
sense has shown the impossibility of governing the 
Philippine Islands on the same plan as Massachusetts 
or California, Yet the positive assertion of the Declar- 
ation of Independence that " all men are created equal " 
reads a little awkwardly in connection with the govern- 
ment of a group of islands by a commission sent to 
them from a distant country, and with the exclusion of 
the unchristian tribes from its future governance. But 
as usual the brute force of circumstances proves too 
strong for abstract theory, even when clothed with the 
historic authority of the Declaration of Independence. 

1 The tariflF as between the United States and Porto Rico was tem- 
porary and has expired. An act of Congress of March 8, 1902, set up 
a tariff as between the Philippines and the United States and con- 
versely. Products of the islands enter the United States at twenty-five 
per cent less than the tariff rate applied to foreign countries. The 
proceeds are expended on the islands. 



COLONIAL GOVERNMENT 291 

The islands have come, by the fortunes of a just war, 
into the possession of the United States. It has be- 
come a moral duty to govern them, and only an infat- 
uated worship of political abstractions could counsel 
handing them over to the wrangling anarchy of their 
half -civilized inhabitants. 

READINGS SUGGESTED 

Egerton, H. E., Short History of British Colonial Policy (1897), 
bk. ii. 

Ridges, E. A., Constitutional Law of England (1905), part vi, 
chap, ii (The Colonies). 

Snow, A. H., The Administration of Dependencies (1902), chap- 
ters xxvi, xxvii. 

FURTHER AUTHORITIES 
Lewis, Sir G. C, Government of Dependencies (1841). 
Todd, A., Parliamentary Government in British Colonies (1880). 
Payne, E. J., Colonies and Colonial Federations (1905). 
Holland, B., Imperium et Libertas (1901). 
Zimmermann, A., Die Europaischen Kolonien (4 vols., 1896). 
Colonial Administration, U. S. Bureau of Statistics (1901). 
Arnold, W. T., Roman System of Provincial Administration 

(1879). 
Cotton, J. S., and Payne, E. J., Colonies and Dependencies (1883). 
Bancroft, G., History of the United States (1834-74). 
Lodge, H. C, Short History of the English Colonies in America 

(1881). 
Seeley, Sir J. R., Expansion of England (1883). 
Pownall, T., Administration of the Colonies (1764). 
Reinsch, P. S., Colonial Government (1902). 
Leroy-Beaulieu, De la Colonisation chez les Peuples Modernes 

(1902). 
Ireland, A., Tropical Colonisation (1899). 
Morris, The History of Colonisation (1902). 
Reed, W., Problems of Expansion (1900). 
Willougliby, W. F., Territories and Dependencies of the United 

States (1905). 



CHAPTER VII 

LOCAL GOVERNMENT 

1. Local and Central Government Distinguished. — 2. Areas of Local 
Government ; the United States, France, England. — 3. Composition 
and Powers of Local Governing Bodies ; the United States. — 4. 
England. — 5. France. — 6. Prussia. — 7. Local Taxation ; the pro- 
perty tax of the United States. — 8. Systems of Local Taxation in 
Other Countries. — 9. Reform of the American System. 

1. Local and Central Government Distin- 
guished. Hitherto, our discussion of the structure of 
government has been confined to the consideration of 
those governing bodies whose authority extends over 
the whole state. But in all but the very smallest com- 
munities these are not the sole organs of administration. 
There exists in addition a number of officials and offi- 
cial bodies, whose functions extend only over a portion 
of the total territorial area of the state. These bodies, 
and the duties that they perform, are spoken of under 
the general designation of local government. Local 
government, therefore, will refer to the operations of 
all township and county councils, the governing bodies 
of municipalities, districts, etc. The common-sense 
meaning of the term is quite clear, but the definition 
of local and central government, in exact, precise form, 
is not so easy. For it is to be observed that not all the 
governing bodies whose power extends only to a part 
of the state are to be classed as organs of local gov- 
ernment ; for otherwise this would include the compo- 



I 



LOCAL GOVERNMENT 293 

nent parts of a federal state, whicli is contrary to the 
evident signification intended. The state authorities 
of New York or Massachusetts are not organs of local 
government. Nor does the distinction lie in the extent 
of territory covered, nor in the number of persons 
ruled over. The municipal government of New York 
or Boston, or the county council of Lancashire, exer- 
cises its authority over a vastly greater number of 
people than the state of Nevada ; on the other hand 
in extent of territory, the senates of Hamburg and 
Bremen, which are not merely local governments, rule 
over less territory than comes within the sphere of 
the council-general of a French department. The dif- 
ference between local and central government is not 
therefore a matter of area or of population. 

The distinction lies partly in their relative constitu- 
tional positions, and partly in the respective nature of 
the public services performed. In regard to the first 
point, it is true of most independent states that the local 
government derives its powers from the central govern- 
ment, and holds them at the pleasure of the latter. This 
is the case, whether or not there is a written constitution. 
In France and in Italy, each of which has a WTitten con- 
stitution, the organization of the local government is en- 
tirely under the control of the central parliament. It is 
for this reason that we do not think of the Swiss can- 
tons or the " states" of the United States as organs of 
local government ; for these component parts of a fed- 
eral system are, within the sphere of their own compe- 
tence, quite independent of the central federal author- 
ity. But the distinction thus made is not universally 
true. Though it applies to nearly all independent states, 



294 THE STRUCTURE OF THE GOVERNMENT 

it is not the case with the organs of local government 
(townships, county, and municipal authorities) in the 
separate commonwealths of the United States. These 
certainly are organs of local government, and yet to a 
great extent they exist by virtue of the state constitu- 
tion, and could not be put out of existence at the will 
of the state legislature. 

The other point of distinction between local and cen- 
tral government consists in the different nature of the 
services accomplished. This requires some further ex- 
planation. The various functions performed by the 
agencies of the state for the benefit of the citizens will 
roughly fall into two classes. Some of them will be in 
the interest of the community generally, and the benefit 
thereby effected will not be assignable to any single part 
of the country. For example, the protection afforded 
by the army and navy whereby foreign conquest is pre- 
vented, is a benefit shared by all the inhabitants alike. 
The same will be true of all the large class of public 
works, the advantage and purpose of which may be said 
to be national. There will also be a number of regula- 
tive functions to be performed, — the institution of the 
criminal law, the control of marriage and divorce, law 
regulating contracts, sales, etc., all of which, to be effec- 
tive, must be uniform. The whole class of functions thus 
indicated will properly fall within the province of the 
central government. But in addition to these, there are 
other state activities (for it must be recollected that 
both local and central government form a part of the 
organization of the state) of quite a different character. 
Here the benefit to be conferred only affects a small 
portion of the community, and is obviously assignable to 



LOCAL GOVERNMENT 295 

a particular area. The lighting of a town, the erection 
o£ a bridge over a country road, the establishment of a 
street-car system, are matters of this sort. Here it seems 
reasonable that the advantage, the cost, and the control 
of the enterprise should be looked upon as solely the 
concern of those who are affected by it. 

Such, then, is the general distinction between the du- 
ties of central and local governments. The public ser- 
vices of the latter wall be found on examination to refer 
mainly to the maintenance of schools, hospitals, asylums, 
bridges, roads, parks, etc., and the management of local 
public utilities, such as lighting plants, transportation 
systems. The activities of local government are thus 
concerned mainly with real property in various forms ; 
it represents the collective activity of the citizens di- 
rected towards the creation and control of such tangi- 
ble utilities (roads, bridges, water supply) as are of 
general benefit in their particular area, and indivisi- 
ble among the separate citizens. The services thus per- 
formed may be better understood by contrasting them 
with such regulative legislative activities as the making 
of the criminal law, which belongs to the central gov- 
ernment. In spite, however, of the obvious nature of the 
general distinction, the functions of local and central 
government shade and blend into one another. In some 
cases what is evidently a local matter as to expense and 
immediate benefit, is yet in other aspects a matter of gen- 
eral concern. This is seen in the case of schools. It is 
of evident universal concern that all the citizens should 
be educated, and it is therefore within the proper prov- 
ince of the central government to make education com- 
pulsory, and to prescribe the general plan upon which 



296 THE STRUCTURE OF THE GOVERNMENT 

it shall be based. It may also properly defray a part of 
the cost, leaving to the local government the immediate 
control and the main part of the cost, at least of pri- 
mary schools. 

2. Areas of Local Government; the United 
States, France, England. From this general con- 
sideration of the nature of local government, we may 
pass to some of the special problems which arise in its 
construction and conduct. These we may group under 
three heads : (1) the question of local areas, and here we 
shall have occasion to contrast the orderly " multiple 
system" in use in the United States with the confusion 
of the English areas ; (2) the composition of local gov- 
erning bodies, and their relation to the central execu- 
tive, in connection with which the centralized system 
of France may be compared with the decentralization 
in England and in America ; (3) the question of local 
taxation, involving an examination of the American 
property tax, and the systems in use in other places. 

The institution of local government everywhere ne- 
cessitates the division of the total territory, not only 
into one set of subordinate areas, but into several. In 
the United States we have townships and counties ; 
in England parishes, districts, and counties (with other 
divisions) ; in France, communes, cantons, arrondisse- 
ments, and departements. In the United States and in 
England we have in addition to these the municipal areas 
occupied by town and city governments. The reason 
for having more than one set of divisions will be plain. 
Different public utilities will naturally spread their 
effect over areas of different size. Thus it will require, 
let us say, only twenty families to support a country 



LOCAL GOVERNMENT 297 

school ; but the same number of families could not with 
advantage erect and maintain a lunatic asylum for their 
use. Nor presumably could a hospital or a poorhouse be 
supported out of so small an area. It becomes plain, 
then, that local government demands the making of 
several areas adapted to the respective " rarity " or 
" denseness " of the function to be performed. But 
for convenience' sake it will be well to make these 
areas as few as may be, and to group together those 
which roughly correspond. 

As the basis of the areas of local government, there 
will generally be found in old countries such as Eng- 
land, France, or Prussia, a primitive unit of settlement 
whose history is long antecedent to that of the central 
government itself. Such is the English parish, whose 
ecclesiastical name has superseded the original Saxon 
" township," the French commune, and the Prussian 
gemeinde. In its origin this represents the little com- 
munity of neighbors living together in a hamlet, or 
in adjacent rural settlements, and conducting their 
joint concerns by some form of common management. 
Where such exists it is plainly desirable to adopt it as 
the primary area of the local government of the modern 
state. There is, however, this disadvantage, that in the 
course of their long history the original parishes, etc., 
will have grown vastly different in size and population. 
In England, for example, out of a total of about 15,000 
parishes, the smallest contains less than fifty acres, the 
largest over 10,000 ; eleven parishes (in 1891) had no 
inhabitants, and the most populous (Islington) con- 
tained 319,000 inhabitants. Similarly in France some 
communes are rural areas or mere hamlets, while others 



298 THE STRUCTURE OF THE GOVERNMENT 

are great cities. In spite of the distortion of area thus 
occasioned, it is advisable to retain such historic areas 
in the frame of local government. For they represent 
an essentially organic unit, and one which offers al- 
ready a common economic and social life as a basis for 
political construction. Above such areas as these will 
come larger units (the counties, districts, etc.) repre- 
senting the performance of public duties such as road- 
making, erection of poorhouses, hospitals, jails, etc., 
which demand a wider support than that given by the 
smallest local community. The number of gradations 
in the ascending scale of local areas varies from coun- 
try to country, and will be best understood by a brief 
comparative review of the division adopted in some 
leading states. 

The United States is singularly fortunate in the 
configuration of its local areas. They are in part 
historic, and in part deliberately constructed prior to, 
or at the same time as, the settlement of the land. The 
towns (townships) of Massachusetts, for instance, and 
the counties of Virginia may be called historic or organic 
areas. They represent the original grouping of settlers 
in their first occupancy of the colony. But one has only 
to glance at the map of such a state as North Dakota or 
Kansas to see that here the form of the local area has 
been a matter of deliberate construction. The town- 
ships, the sections into which they are divided, and the 
counties of which they form a part, are rectangular 
figures constructed on a common plan. But in the 
greater number of the commonwealths in the United 
States, whether in regular lines or not, we find each 
commonwealth divided into townships, which grouped 



LOCAL GOVERNMENT 299 

together make up counties. In some states, as in New 
England, the townships have come first, and the county 
is made up by a subsequent addition of townships ; 
in the South the reverse has been the case, and the 
original area was the county, subdivided later to make 
townships. In the newer states, townships and counties 
have been made at the same time. But the excellence 
of the arrangement of the areas of local government 
in the United States lies in the fact that the larger 
areas are multiples of the smaller ones ; township lines 
do not cross county lines. The result is that all the 
inhabitants of any township belong to the same county. 
This will be seen to have a most important bearing on 
the adjustment of local financial burdens. 

The division of areas in France is based, as in the 
United States, on the multiple plan. To this general 
scheme, however, the historic commune is a disturbing 
exception. There may be several communes in an ar- 
rondissement (as is generally the case, since the total 
communes number 36,000), or, as in the case of Paris, 
several arrondissements in a commune. But above the 
commune the areas fit into one another ; the canton 
(which is only an electoral and judicial district, and not 
a seat of government) is in every case a part of an ar- 
rondissement ; the latter itself is a subdivision of the 
largest area, the departement. With the exception again 
of the commune, all these areas represent deliberate 
construction, involving to some extent the sacrifice of 
the historic division of the country. They were made 
in 1790 by the Constituent Assembly, the first national 
parliament of the French Revolutionary era. This is 
reflected in tlie fact that the departments are approxi- 



300 THE STRUCTURE OF THE GOVERNMENT 

mately of equal size. Some of the more extreme construc- 
tionists of the epoch wished to subdivide France into a 
number of rectangles, exactly similar and exactly equal, 
disregarding at the same time the geographical config- 
uration of the country and the historic associations of 
provinces, towns, and districts. This was not done, how- 
ever, and the departments as constructed conform 
pretty much to the physical features of the country, 
and are named after the mountains, rivers, bays, etc., 
which they contain or adjoin. 

In England, and indeed in the British Isles generally, 
the utter confusion into which the areas of local govern- 
ment had fallen has caused one of the administrative 
problems of the nineteenth century. In Saxon times 
the township, the hundred, and the shire formed a 
simple multiple system with local self-governing bodies. 
But the hundred fell into decay, the township (taking 
its ecclesiastical name of parish) became irregular, and 
lost most of its civil authority, and in place of the local 
self-government of township and county was substi- 
tuted first the control of the king's sheriff, and finally 
the almost universal administrative jurisdiction of the 
local justices of the peace. For special purposes — the 
care of the poor, highways, burial, sanitation, schools 
— special areas were added, having little to do with 
parish or county lines, and under a separate govern- 
ing body. The result previous to the reforms to be 
described later was complete confusion. The situation 
is thus described by Dr. William Odgers, recorder of 
Winchester: ^ '' In 1883 England and Wales were di- 

1 Local Government, 1901 ; an excellent book, which, however, refers 
only to local g-overnment in England. 



LOCAL GOVERNMENT 301 

vided for local-government purposes into the following 
areas : There were 52 counties, 239 municipal bor- 
oughs, 70 improvement-act districts, 1006 urban san- 
itary districts, 41 port sanitary authorities and 577 
rural sanitary districts, 2051 school board districts, 
649 unions, 194 lighting and watching districts, 
14,946 poor-law parishes, 5064 highway parishes, not 
included^n urban or highway districts, and about 13,000 
ecclesiastical parishes. The total number of local author- 
ities who then taxed the English rate-paj^er was 27,069, 
and they taxed him by means of 18 different rates." 
With one trifling exception, " all the various areas in- 
tersected and overlajDped each other." The means that 
have recently been taken to rectify the entanglement 
thus occasioned will form the subject of a later j)ara- 
graph. 

3. Composition and Powers of Local Govern- 
ing Bodies ; the United States. Let us now consider 
the composition and powers of local governing bodies, 
and their relation to the central authority. Here we 
may distinguish two broadly contrasted methods of con- 
struction. The one is the system of decentralization, 
or local autonomy. By this the control of local affairs 
is vested in a set of officials, elected by the people of 
the locality itself. Subject to certain general regula- 
tions which proceed either from the central authority 
or from the constituent power (expressed in a written 
constitution) which is behind both the central and the 
local organization, the fullest latitude is given to the 
citizens of the locality in the management of their 
public affairs. The other system is that of centraliza- 
tion. Here the management of local affairs is largely 



302 THE STRUCTURE OF THE GOVERNMENT 

controlled by a set of officials appointed by the central 
government. The former system prevails in complete 
form in the United States, and to a slightly less degree 
in England. The latter, or centralized system, is in 
use in France. In the kingdom of Prussia, something 
of a combination of the two has been put into practice. 
A brief review of the governing bodies thus established 
in the different cfountries will help us to a judgment 
as to the peculiar political purposes and the relative 
merits of the two systems. 

In the United States, both in the North and South 
and in the new states, local autonomy prevails. The 
form which it assumes differs, however, to some extent. 
In the New England states the primary area of local 
government is the historic " town " or township, origi- 
nally formed by the joint settlement of a group of 
emigrants. Its government has already been referred 
to in connection with direct legislation in a preceding 
chapter. The original organ of its government is the 
mass meeting of the qualified voters, called the town 
meeting. In places that have grown too populous for 
such a form of government, the town meeting is re- 
placed by elected municipal government, — in Massa- 
chusetts, for example, towns of over twelve thousand 
inhabitants are erected into municipalities. But in less 
populous areas, the town meeting still exists. It is held 
once a year (with extra sessions, if necessary), usually 
in the spring, though in Connecticut the regular meet- 
ing is in the autumn. Its business is to elect the officers 
of the township for the ensuing year, to vote on the 
prospective expenditure of money, and the basis of its 
assessment, and other local matters that may be brought 



LOCAL GOVERNMENT 303 

before it. When the town meeting is not in session, its 
authority passes to the officers whom it has elected. 
These are the group of selectmen, varying from three 
to nine in number ; the town clerk, who keeps its rec- 
ords ; the treasurer and the assessors, who are en- 
trusted with the important duty of setting a value on 
the property of the township for the collection of taxes ; 
in addition to these are a collector of taxes, school- 
committee men, and minor officers. This system, it will 
be seen, erects the township into a complete local de- 
mocracy, a republic within a republic, as it were. The 
authority of the superior officials of the state over the 
affairs of the township is reduced to a minimum. It 
must be recollected, of course, that under the Ameri- 
can system, the state constitution itself acts as a check 
upon the power of the local authorities, prescribing 
the limits of their authority, often laying down the 
maximum of their taxing power, and the form of taxa- 
tion which they are authorized to use. If they exceed 
their legitimate powers, the usual method of judicial 
redress through the courts can be brought into play. 
The area superior to this, the county, is in New Eng- 
land merely a grouping of townships, whose governing 
authority is an elected body, the functions of which 
are very restricted. In Massachusetts there are three 
commissioners, one elected each year, and serving for 
three years. Their duties consist in apportioning taxes 
for county purposes among the towns according to the 
system discussed later, in erecting and looking after 
county buildings, and nuiintaining county roads, in is- 
suing licenses, etc. 

In the South the position of county and town is 



304 THE STRUCTURE OF THE GOVERNMENT 

reversed. The county is the historic area, originally 
used for judicial purposes, and extended in use, later, 
to other administrative functions. The township repre- 
sents a subsequent subdivision of the county, especially 
for the purpose of maintaining primary schools. But 
in some states the county exists alone, without the 
township. The organization of the Southern county is 
based on local autonomy. At its head is the elected 
board of county commissioners, with whom are asso- 
ciated a treasurer, superintendents of the poor and of 
education, sheriff, and other officers. Where no town- 
ship exists, the commissioners of the county conduct 
the whole local administration (roads, poorhouses, jails, 
etc.) ; where the township has been introduced, the 
things handed over to its elected officers vary very 
much. 

In the central Atlantic states, and to the west of the 
Alleghanies, we no longer fiud either township or 
county assuming the same preponderant position as in 
New England or the South. Both township and county 
exist, governed by officers elected by the people, and 
dividing the local government between them according 
to the nature of the service to be performed. Some- 
times the one and sometimes the other has been 
historically antecedent. In New York, Pennsylvania, 
Delaware, and New Jersey, the township was the origi- 
nal area, an organic unit based on settlement. For 
this reason we still find the annual town meeting in 
rural New York, presided over by the justice of the 
peace, electing officers, passing bj^-laws, and voting 
taxes. But in the central Atlantic states the existence 
of a larger and artificial area in the shape of the 



LOCAL GOVERXMEXT 305 

"riding," acted as the starting-point for the introduc- 
tion of county government. In the northwestern states 
the county has generally preceded the township. In 
Illinois, most of whose Southern settlers in early times 
came from Virginia, the county was first introduced. 
But here, as in a great many other states, the needs of 
school regulation served to introduce township govern- 
ment. By the system of surveys made by authority of 
Congress (beginning with the land ordinance of 1785), 
the land in all new territory has been cut up into 
squares six miles each way, and thus containing thirty- 
six square miles. One square mile in each has been 
devoted by the national government to the maintenance 
of public schools. It has thus happened that in many 
cases the word " township *' was first used merely as 
the designation of tlie tract of land six miles sqtiare. 
Later on, as settlement grew, the election of officers 
for the public business of the township naturally fol- 
lowed. But in other states the township, though the 
county has existed side by side with it, has been from 
the first the chief area of local government. This has 
happened in Michigan, whose first settlers came from 
New England, and transplanted their local institutions. 
The town meetino^ is in use in Michioan almost in the 
same way as in Massachusetts. Within the township 
itself there is often found as a subordinate area the 
school district, with separate elected officers (trustees, 
directors, etc.), who appoint teachers, supervise the ex- 
penditure of money on buildings, etc. But this is not 
universal, as in many places — in Massachusetts and 
Pennsylvania, for example — the school district is 
amalgamated with the township. 



306 THE STRUCTURE OF THE GOVERNMENT 

The above are the only organs of government that 
operate in the rural parts of the country. But there 
are, in addition to these, the urban organizations (cities, 
towns, villages, and — in Pennsylvania — boroughs) ; 
the exact form of government varies from state to 
state. Cities and towns, etc., are sometimes organized 
by virtue of a general statute or constitutional pro- 
vision, which makes it possible for any locality having 
a certain population to adopt a municipal government. 
Sometimes their form of administration is given to 
them by a special act of the legislature. It may 
approximately be said that the latter is the case in 
regard to the larger cities, the smaller ones coming 
under a general law. In all cases the government is 
democratic and autonomous. The control of the city is 
in the hands of officers elected by the qualified voters 
among its inhabitants, or, if not directly elected, at any 
rate appointed by some one else who is himself elected. 
In some states (Virginia) the city government excludes 
the county ; in others the county remains, forming a 
jDart of the city, or including the city as part of itself. 
The government of an American city resembles in its 
structure that of one of the states. At its head is an 
elected mayor, as chief executive officer, with a large 
number of subordinates, partly elected, partly ap- 
pointed. There is, in addition, a legislative or quasi- 
legislative body in the form of the city council, gener- 
ally made up of two different sets of members — the 
aldermen and the councillors — who are elected for 
different terms and different districts. The earlier ten- 
dency, which originated in the prevalent belief in the 



LOCAL GOVERNMENT 307 

omniscience of any legislative body and a distrust of 
executive officers, was to place the bulk of the authority 
in the hands of the council, and to give the mayor as 
little discretionary power as possible. 

The change of public opinion in this respect (al- 
ready referred to in a preceding chapter) has caused 
a contrary policy. The concentration of authority 
in the hands of one man, rather than of a whole 
body, carries with it a definite location of responsi- 
bility. One man, conspicuous by the isolation of his 
office, aware that he alone is answerable, and that 
the blame of negligence cannot be shifted, and 
having at the same time the power to apt unhamp- 
ered by idle discussion, is more likely to prove effi- 
cient than a committee whose members can shift 
to one another's shoulders the blame of their joint 
misdeeds. 

In Boston, for example, the administration is vested 
in a mayor elected for four years, but subject to recall 
after two years, and a city council of nine members, 
elected at large for three-year terms. The mayor has a 
veto over the acts of the council, and appoints nearly 
all the heads of departments, boards, and commissions. 
By the charter of greater New York, amended in 1901, 
the city government centres in a mayor, elected for 
four years, and a board of seventy-three aldermen, 
elected for the same term. The mayor has very great 
power. He can absolutely veto any grant of a city 
franchise, and has a partial veto over ordinary legis- 
lative acts of the board of aldermen. He appoints 
the heads of fourteen out of the fifteen administrative 



308 THE STRUCTURE OF THE GOVERNMENT 

departments (fire, education, water supply, etc.), and 
has power to remove most of them. He appoints, also, 
the civil service commissioners. Each of the separate 
boroughs of greater New York has its president, who 
controls the street paving, the sewers, etc.^ 

The most important of all questions in connection 
with city government is not its construction but the 
scope of its operation, the kind of public services which 
it is to undertake, whether or not it shall operate its 
own lighting plant, car service, etc. But the consider- 
ation of this topic will fall under a later chapter. 

4. England. The distinctive feature of American 
local government has been seen to be the great extent 
to which autonomy, or self-government, prevails. The 
same feature is to be observed in the local government 
of England, as recently reconstructed ; but previous to 
the reconstruction acts of the last half of the nineteenth 
century, this was not the case. The greater part of local 
jurisdiction had been placed, not all at once but bit by 
bit, in the hands of the justices of the peace. The func- 
tions of these officials had become so numerous as to 
defy anything but a purely alphabetical enumeration ; 
they included such important matters as the levy of 
the county rate, the issuing of liquor licenses, the con- 
duct of asylums, and the supervision of prisons. In 
their judicial capacity these officials tried criminal 
cases. The justice of the peace, appointed by the 
crown, on the advice of the lord lieutenant of the 
county, did not represent the principle of local self- 
government. He was the nominee of the central gov- 

1 D. B. Eaton's Government of Municipalities is a standard work 
upon the subject of city government. 



LOCAL GOVERNMENT 309 

ernment, and in many cases was acting as the agent of 
one of its departments, of the local government board, 
the board of trade, etc. In addition to the justices, 
various special bodies had been created in the course 
of the nineteenth century, occupying some of the con- 
flicting areas already mentioned. The board of guar- 
dians (by the poor law amendment act of 1834) had 
control of the care of the poor in a '' union " of par- 
ishes, the board being composed of the local justices to- 
gether with elected members. The burial acts (1852 
and others) constituted burial boards, elective bodies 
operative over a parish or larger districts. Finally 
there were added, in 1870, school districts, with elec- 
tive school boards. The parish itself remained as an ec- 
clesiastical area, but exercised also through its officials, 
or through its general vestry meeting, minor civil func- 
tions. These and other bodies made up a medley of au- 
thorities, whose areas of jurisdiction were inextricably 
confused, and whose composition gave but little scope 
to local self-governance. The government of cities and 
towns which had grown up under special charters, and 
was often in the hands of a small portion of the inhab- 
itants (sometimes of a close corporation), was also 
hopelessly confused and hopelessly at variance with any 
principle of popular government. 

Though much of the older confusion, at least as 
viewed by an American, remains, a great deal has been 
done to place local government in England upon a 
more reputable footing. Two main objects have been 
kept in view, — the rectification of areas and the intro- 
duction of local self-government. With this object, a 
series of reforming acts has been passed : the munici- 



310 THE STRUCTURE OF THE GOVERNMENT 

pal corporation acts of 1835 and 1882, the local govern- 
ment act of 1888 (referring mainly to county govern- 
ment), the local government act of 1894 (for parishes 
and districts), the London government act of 1899, and 
the education act of 1902. The general effect of the 
reform is as follows. The justice of the peace is rele- 
gated to his judicial sphere, retaining but few of his 
administrative functions. The old Saxon system of 
three ascending areas with elective self-government 
(township, hundred, and county) reappears in the 
present parish, district, and county. To the county is 
given an elected council, with wide range of local power. 
The elected district council has authority over sanita- 
tion, allotments, certain licenses, and other things. The 
parishes inside the area of towns are not affected by 
the reform, but the rural parishes have now elective 
self-government. If the parish has less than three 
hundred inhabitants, it exercises its government by 
means of a general " parish meeting," on the lines of 
the American town meeting, but with much less author- 
ity, for the sphere of parish operations is small. In 
the larger parishes councils are elected. The school 
district under the act of 1902 disappears, and the con- 
trol of schools is vested in a committee of the county 
council, having as a subordinate authority a body of 
manao^ers for each school.^ The reforms also intro- 
duce elective self-government into the cities and towns, 

^ Tlie violent opposition to the act arose not from this aspect of its 
provisions, but from the fact that, in unifying the church schools with 
the board schools, it contrived to allow the former to get a share of 
the proceeds of local taxation. It amounted therefore, in the eyes of 
its adversaries, to a device for making rate-payers of all denominations 
contribute to the support of the schools of the Church of England. 



LOCAL GOVERNMENT 311 

in the shape of mayor, aldermen, and councillors ; but 
the relation of the cities to the counties in which they 
lie is not always the same. Some are administrative 
counties (Southampton, etc.), or are " county boroughs " 
(Liverpool, Manchester, and about sixty others), and 
stand quite apart from the county government. Below 
these are graded classes, which fall to an increasing 
extent within the regulation of the county authori- 
ties. London stands by itself. It contains within it the 
small central portion (about one mile square) known 
as the city of London, and governed as before by the 
lord mayor and the " courts " of which he is j^resi- 
dent, the court of common council (composed of alder- 
men and councillors) being the chief. Outside of this 
lies the vast " county of London " (with a population 
of 4,522,961 in the census of 1911), under the control 
of an elected county council. This whole area (except 
the city) is subdi\nded into twenty-eight " metropoli- 
tan boroughs," each with an elected council. The re- 
sult of these various reforms is that throughout the 
whole system the central government has withdrawn 
from its former control, in favor of the autonomy of 
elected local authorities. Such management as it still 
retains is in the hands of the local government board, 
a body consisting of a president (who is a member of 
the cabinet, and who is the acting power) and other 
cabinet officers, nominally associated with him. But 
the duties of the board consist merely in supervision ; 
it does not appoint local officials, and its chief function 
of importance is to sanction financial measures of the 
subordinate authorities. 

5. France. In France local government assumes 



312 THE STRUCTURE OF THE GOVERNMENT 

an entirely different character from that found in 
America and England. The distinguishing feature is 
its highly centralized form, and the great degree of 
dependence in which all local authorities are placed in 
regard to the central national government. Take for 
instance the administration of a French department, 
the largest of the local areas. At its head is the pre- 
fect, an official appointed by the president of the re- 
public, on the recommendation of the minister of the 
interior. He has associated with him, it is true, an 
elected body known as the general council of the de- 
partment. But the power of the latter is reduced to 
the smallest compass. It is allowed by law only two 
regular annual sessions, the one of fifteen days, the 
other of a month. It has no true taxing power, for the 
amount of money which it may use and the manner of 
raising it are both regulated by the French parlia- 
ment. In the spending of the money thus accruing to 
it, it does not act on its own initiative, for it is the 
prefect who draws up the budget which is annually 
submitted to it. Even then the expenditure as finally 
voted requires the assent of the president of the re- 
public. The latter has also the power to dissolve the 
council, a power which may be exercised even by the 
prefect if the council outsits its statutory term. If it 
exceeds the scope of its legal competence, its acts can 
be declared void by the president. Its members are 
unpaid, their attendance is compulsory, they are for- 
bidden to adopt any resolutions, etc., bearing upon gen- 
eral politics, nor can a council enter into any political 
correspondence or relations with that of any other de- 
partment. In contrast to this the power of the prefect 



LOCAL GOVERNMENT 313 

is very great. At times, indeed, lie merely acts as the 
agent of the general government, with no discretion of 
his own, as when enacting the ordinances of the presi- 
dent. But in addition to this, and to the duties in con- 
nection with the council already explained, the prefect 
has a wide sphere of authority. He appoints and dis- 
misses the teachers in the government schools, is at 
the head of the police, is recruiting officer, etc. The 
same system on a smaller scale is adopted in the arron- 
dissement, the first subdivision of the department. At 
its head is a sub-prefect, appointed by the president ; 
the functions of its council amount to little more than 
the division of apportioned taxes among the communes. 
The primary unit, the commune, is in a slightly less 
dependent position. Being organic and historic, and 
not merely " geometrical," as are the superior units, it 
tends to develop a greater vitality. Its mayor (since 
1882) is an elected officer. But its municipal council, 
like that of the department, has restricted powers and 
very limited sessions.^ It is subject to dissolution by 
the president, and can be suspended for a month by 
the prefect. All French towns and cities except Paris 
and Lyons, which have a special form of government, 
are organized as communes on the same plan. 

The peculiar form which local government has thus 
assumed in France has grown out of the troubled his- 
tory of the country since the Revolution. At the mak- 
ing of the first constitution of that era (the monarchi- 

^ Full details in reference to the organization of local g-overnment 
in France may be found in Ducrocq, Cours de Droit Administratif, 
vol. i; and in Simonet, TraiU EUmentaire du Droit Public et Admini- 
itratif. 



314 THE STRUCTURE OF THE GOVERNMENT 

eal constitution adopted in 1791) the reformers were 
fully inspired with the idea of local autonomy. The 
departments were erected into what were described 
as " little republics/' and the power centred in their 
" councils general " was very considerable. Such an 
arrangement made at such a time served only to 
weaken the authority of the central executive at Paris 
to an alarming degree. Under the revolutionary 
government of the Terrorists, therefore, in 1793-94, 
local power was put into the hands of " national 
agents," appointed from Paris, and of special " repre- 
sentatives on mission," who exercised a dictatorial 
power. The intense centralization thus effected ren- 
dered it possible for the executive government to avail 
themselves of the whole resources of the nation with 
wonderful effect. The same plan was deliberately 
adopted and perfected by Bonaparte under the consti- 
tution of the year YIII (law of Feb. 17, 1800), in which 
the prefects and sub-prefects appear, and which has since 
remained as the basis of local government in France. 
The struggle between different dynasties and parties 
for the control of the national government, and the 
successive revolutions (1830, 1848, 1851, 1870) in which 
the struggle has culminated, have made each party 
willing to adopt the centralized system as a means of 
consolidating its own power. This has contributed 
largely to give to Paris a political preeminence not 
enjoyed by any other capital. For the purposes of 
revolution, Paris during the nineteenth century meant 
France, and the successful seizure of the central control 
carried with it the mastery of the entire government. 
The efficiency of this concentration of power in time 



LOCAL GOVERNMENT 315 

of war or invasion is very great ; it insures a prompt 
cooperation from all parts of the country. But as 
against this must be set the enervating influence on 
local affairs of government from above, and the temp- 
tation of the central government to use its agents for 
political purposes. 

6. Prussia. The system of local government in 
Prussia is far too complex to allow of any adequate 
description in brief compass. The areas are numerous 
(provinces, districts, circles, communes, and organ- 
ized towns). It contains, however, one interesting fea- 
ture, which may be noticed in passing. As a compro- 
mise between state control and local self-government, 
there is in use in the Prussian provinces a double set 
of officials, a president and council appointed by the 
crown, and a provincial diet elected by the represent- 
ative bodies in the circles and choosing its own exec- 
utive head (Landeshauptmann) and executive com- 
mittee. The spheres of state authorities and provincial 
elective authorities are kept separate, the former being 
mainly concerned with supplying information to, and 
acting as the agent of, the royal government at Berlin. 
The functionaries of the Prussian district are all nom- 
inated by the central government ; of those of the cir- 
cle, the executive chief is appointed by the president 
of the province, the diet is elective. In rural com- 
munes there are elective assemblies, but there remain 
still communes, if one may use the term to translate 
the word Rittergut^ that are under the jurisdiction of 
a manorial lord. The towns and cities are variously 
organized on the elective plan. But it must be recalled 
that the elective system in Prussia is always arranged 



316 THE STRUCTURE OF THE GOVERNMENT 

on the division of classes described in an earlier chap- 
ter. The central government retains a supervising 
power over financial measures. The Prussian system 
of combining local authority with central control would 
prove quite impossible in America, owing to the con- 
flict of jurisdiction it would occasion ; in Prussia such 
conflict is less to be feared, because it is a matter con- 
trolled, as already explained in reference to France, by 
the administrative officers themselves. 

7. Local Taxation; the Property Tax of the 
United States. We come now finally to the difficult 
question of local taxation and finance. In the United 
States local taxation has proved one of the most seri- 
ous of the practical problems of , administration. The 
peculiar difficulty which has arisen to a greater or less 
degree all over the Union is of the following character. 
The state, county, and township authorities draw a very 
large proportion, in the case of the two latter practically 
all, of their financial support from the proceeds of a 
direct tax laid on all forms of property. The tax ap- 
plies both to real and personal property, — land, houses, 
buildings, horses, carriages, furniture, stock and shares, 
mortgages, bonds, etc. At its origination it seemed 
eminently reasonable. The states were forbidden to 
levy import and export duties, and to levy excise duties 
would tend to drive out manufactures to a more fa- 
vored locality ; they therefore of necessity fell back 
on direct taxes. And of all such, a single tax, laid on 
all forms of property alike, seemed to commend itself 
as the most uniform and the most equitable. In prac- 
tice it has shown itself to be distressingly inequitable. 
This is due in part to the manner of its assessment, 



LOCAL GOVERNMENT 317 

which is made as follows. The state authorities com- 
pute the amount of the direct tax needed for their pur- 
poses, and divide it up among the counties in the 
proportion of the value of assessed property in each. 
To the sum thus called for each county adds the amount 
needed for its own use and then distributes it in like 
manner among its townships, again according to the 
proportional value of the assessed property in each. 
To this sum the township adds what is needed for its 
own purposes, usually the largest amount of all. The 
total thus reached is distributed among all the property- 
holders of the township according to their proportion of 
assessed property ; in other words the total of the as- 
sessed property is divided by the total tax to be collected, 
and a tax rate is thus obtained which is levied on all 
the property. If, for example, the total of the property 
was worth $5,000,000, and the total tax to be collected 
was $100,000, then the tax rate would be put at one 
fiftieth or two per cent. Under such a system, then, 
everything turns on the assessment. If one county has 
been assessed for very much less property than it actu- 
ally has, then the amount of the tax assigned to it by the 
state will be very much less than it should be, but at 
the expense of the other counties, for the rate all round 
will need to be higher in order to supply the fixed 
quantity of money asked for. Or again let us su2)pose 
that in one of the townships the property is assessed for 
very much less than it is worth. Then the township in 
which the assessment is too low is given less than its 
share of the county tax, but always at the expense of 
the other townships, on account of the rate being of 
necessity higher than would be needed if the assess- 



318 THE STRUCTURE OF THE GOVERNMENT 

ment were larger. Finally, within the township itself 
precisely the same thing happens among individuals. 
Any one whose property is put at too low a valuation, 
or not valued at all, escapes at the expense of his 
neighbors; and the more the property in general 
escapes assessment and remains invisible, the higher 
becomes the tax rate. Hence has arisen what is called 
competitive under-assessment, the counties and town- 
ships vying with one another in attempting to make 
their findable property as small as possible. The as- 
sessors, moreover, being elective officers, elected in most 
cases for a very short term, are personally interested 
in not making the total property of their area stand at 
too high a figure. 

The upshot has been that while the system was origi- 
nally devised as the most equitable form of universal 
taxation possible, in its actual operation nothing could 
be more vicious and inequitable. For it is to be ob- 
served that it in reality discriminates most unfairly be- 
tween different kinds of property. Real estate, for ex- 
ample (lands and buildings), is much less easy to conceal 
than such forms of property as shares in bank stock, 
bonds, debentures, etc. In illustration of this it may be 
mentioned that in the assessment of property in Brook- 
lyn in 1895, real estate constituted over ninety-eight per 
cent of the total values. Some years ago (1884) a tax 
commission in West Virginia reported in reference to 
personal property, " Things have come to such a con- 
dition in West Virginia, that as regards paying taxes on 
this class of property, it is almost as voluntary, and is 
considered pretty muclkin the same light, as donations 
to the neighboring church or Sunday school." In ad- 



LOCAL GOVERNMENT 319 

dition to this, a premium is put upon dishonesty, since 
people of a pliable conscience will find it easier to 
dodge the assessment than those of a more uncompro- 
mising morality. Even some of the measures intended 
to prevent this, as, for example, the adoption of a sched- 
ule of property made out and sworn to by the owner, 
and the penalties (legal and spiritual) for perjury, etc., 
accentuate the evil rather than lighten it. The worst 
feature of all is that when under-assessment once sets 
in, it moves forward at an accelerated pace. For the 
higher the rate rises, the more imperative does it be- 
come for each individual to understate his property. 
But the more the property is understated, the higher 
the rate rises, and thus the worse the situation is, the 
worse it tends to become. In some cases the rate be- 
comes so high that to tell the literal truth, and pay the 
full tax rate, would mean absolute ruin. Thus in some 
of the "towns" of Chicago, previous to the reform of 
the assessment system a few years ago, the rate stood 
as high as eight and nine per cent. Now it must be re- 
membered that this means, not the contribution of eight 
per cent of one's income, but eight per cent of one's 
capital property. To actually pay this and continue in 
business would not, for ordinary enterprises, be found 
possible. Tlie result is that both the assessors and the 
assessed adopt a rough scale of depreciation, accepting 
as accurate a figure that is perha})s one fifth or one 
tenth of the probable actual value of the property con- 
cerned. Meanwhile the incentive to dishonesty remains, 
and a vast amount of property escapes untaxed.^ 

^ For detailed statistics as to the operation of the property tax, the 
following -works may be consulted : Seligman, Essays on Taxation^ 



320 THE STRUCTURE OF THE GOVERNMENT 

Throughout the entire United States opinion is 
agreed as to the inefficiency and iniquitousness of the 
general property tax. It has been condemned by a 
long series of state tax commissions held within the last 
forty years, and by all the highest authorities on the 
subject of public finance. " Instead of being a tax on 
personal property," said the New York commissioners 
of 1872, "it has in effect become a tax upon ignorance 
and honesty. That is to say, its imposition is restricted 
to those who are not informed of the means of evasion, 
or, knowing the means, are restricted, by a nice sense 
of honor from resorting to them." The Illinois com- 
mission of 1886 spoke of it as " a school for perjury, 
promoted by law." The New York report of 1893 says, 
" It puts a premium on perjury and a penalty on integ- 
rity." The recent industrial commission in its final re- 
port (vol. xix) quotes as illustrative of the general feel- 
ing, the words of a special committee on taxation which 
reported to the California senate in 1901 : " From 
Maine to Texas and from Florida to California, there 
is but one opinion as to the workings of the present 
system. That is, that it is inequitable, unfair, and posi- 
tively unjust. Theoretically all property is called upon 
to bear a share of the public burdens in exact propor- 
tion to its present value. In practice that end is ad- 
mittedly not even approached. Scarcely a fractional 
part of the property in any commonwealth is brought 
to the tax rolls. This is especially true of personal 
property in its most coveted forms, money and credits." 

chaps, i, ii, and xiii, 3d edition, 1900 ; Ely, Taxation in American States 
and Cities ; Final Report of the Industrial Commission, vol. xix, pp. 
1031-1071. 



LOCAL GOVERNMENT 321 

That the reform of local taxation is one of the crying 
needs of the American system of government is only 
too obvious. But before considering the steps that 
have already been taken in that direction, and the vari- 
ous plans suggested, it will be well to set in comparison 
the systems adopted in other countries. 

8. Systems of Local Taxation in Other Coun- 
tries. Complicated as is the local administration of 
England, there are certain features of its financial sys- 
tem which merit attention in connection with the pre- 
sent question. In the first case the central government 
does not divide or apportion taxes among the county 
councils for collection, so that all question of competi- 
tive uuder-assessment as between counties is set aside. 
Nor is there, for reasons which will appear presentl}^, 
competitive under-assessment between the minor areas. 
In the next place the whole field of personal propertj^, 
tangible and intangible, is left out of local taxation. 
Thus the American difficulty of finding "invisible pro- 
perty " is avoided. But at the same time such property 
contributes to the national finance through the income 
tax, an adjustable tax ranging from two to five per 
cent, or even higher, and which, among its other cate- 
gories, is levied on stocks, shares, etc., and paid at the 
source. Though the operation of the income tax is of 
course fallible, and allows the more fluid forms of in- 
come (professional, etc.) to partially escape, it never- 
theless serves to make the intangible forms of property 
contribute to the general revenue of the state. 

The actual revenues of the local authorities consist 
partly of sums handed over to them by the central gov- 
ernment, and partly of " rates " (proportional taxes) 



322 THE STRUCTURE OF THE GOVERNMENT 

which they levy on real property. To the first class be- 
long certain payments made by the national government 
to the counties (administrative counties, and county 
boroughs), representing a fraction of the amount received 
as the proceeds of license taxes (liquor, dogs, guns, etc.), 
a fraction of the estate duties collected, and, under a 
statute of 1890, the proceeds of certain duties on spir- 
its and beer. In other words the national government 
collects various taxes, and shares them among the 
counties. The rest of the local income comes from 
direct taxation. The rate is levied not, as in America, 
on the capital value, but merely on the annual value 
of real property. A committee of the county council 
fixes the county rate, assigning to each parish a stand- 
ard of what the rate is to produce. This involves as- 
sessment as in America of the property value in the 
parish, but the valuation is never made by an elected 
parish officer. The county authorities follow the valu- 
ation made by the national government for the raising 
of the income tax, or that of the poor-law authorities, 
or at times make a valuation of their own. Boroughs, 
districts, and parishes levy similar rates on the annual 
value of real property. The difference in conditions 
between England and America is seen in the fact that 
while the American property tax ranges (nominally) 
from about one and one half to ten per cent on capital 
value, the total of various kinds of English local rates 
for the year 1895-96 stood at 4s. 5(7. on the pound of 
annual value ; in other words, while the nominal Amer- 
ican rate is at one to ten per cent of capital, the Eng- 
lish rate is twenty-two and one half per cent of income. 
Even this rate is considered in England alarmingly 



LOCAL GOVERNMENT 323 

high. In the 3'ear 1899-1900, something over forty and 
a half million pounds was raised by direct taxation, 
and twelve and a quarter million pounds derived from 
the contributions of the central government. 

It must not be thought, from what has been said 
above, that the situation in regard to local finance in 
England is altogether felicitous. There, however, the 
feature which occasions grave apprehension is not the 
method of assessment and levy, but the great increase 
of local expenditure and local debt. The local expen- 
diture of England and Wales in 1868 was only thirty 
million pounds ; in 1900 it reached one hundred and 
one million. Much of this has been paid for with bor- 
rowed money, and the total of local indebtedness stands 
at about tliree hundred million pounds. As a result 
local rates have increased to a great, indeed to an alarm- 
ing extent. The rate per pound in 1891-92 stood at 3s. 
8J. ; in 1895-96 at 4s. 5c?. ; in the largest boroughs in 
1910 the rate exceeded 7 shillings. It is true that the 
borrowing powder of local bodies is subject to the sanction 
of the local government board, and the accounts of most 
local bodies are audited by district auditors, ajjpointed 
by the same authority, and having a power to disallow 
items.^ A further extension of this application of central 
control would seem justified by the circumstances. 

In France ^ local government presents certain fea- 
tures differing in a marked degree from the systems 
both of England and America. In the first place, use 
is made of a sort of internal customs duty, the oc- 
troi, levied on various classes of goods brought into 

^ Odgers's Local Government, chap. xii. 

2 For local taxation in France, see Leroy-Beaulieu, TraiU de la 
Science des Finances, vol. i (6th edition, IS'J'J). 



324 THE STRUCTURE OF THE GOVERNMENT 

towns. This is one of the main resorts of communal 
finance, the towns as already seen being organized as 
communes. The same form of local tax is used in 
Paris and Lyons. In the year 1896 no less than 1513 
French cities, towns, and villages made use of the 
octroi, the revenue thus produced being about one 
third of their total revenue. The chief articles thus 
taxed are wines, beer, and spirits generally, oil, meat, 
combustibles, fodder, and building materials. This part 
of the French system is certainly to be condemned. It 
hampers trade, and is troublesome and expensive in 
collection. Unfortunately, like other indirect taxes, it 
has the insidious quality which renders its use tempt- 
ing to municipal authorities. The employment of the 
octroi, though abolished at the tiaie of the French 
Revolution, has steadily increased in the nineteenth 
century, and in 1899 about one third of the population 
of France were subject to it. 

For the rest of the municipal revenue and for the 
revenue of the department, a quite different plan is 
used. There are four great direct taxes levied by the 
French national government, — the tax on real estate, 
tax on personalty and persons (impbt mohilier et ;;er- 
sonnel), the door and window tax, and the tax on busi- 
ness. Of these the last named is a graded tax on all 
forms of business enterprise, varying according to the 
kind of business, the magnitude 'of the business, and 
the location of the business. The whole classification 
falls within the scope of the central government ; there is 
no apportionment among departments, etc., and hence 
no chance of competitive under-assessment. It is as if 
the state of Massachusetts imposed a license tax on 



LOCAL GOVERNMENT 325 

all forms of business, wliich, other things being equal, 
would be higher in Boston than in a town of fifty 
thousand peojile, and higher in the case of bank- 
ing business, other things being equal, than for a 
grocery business, and finally would be higher in the 
case of a business employing one hundred men than 
one which only employed twenty, still with the con- 
dition that other things were equal. The total tax 
collected would therefore vary with the changing fac- 
tors. Its use by the government of France is meant to 
supplement the lack of a national income tax. Of the 
other taxes, that on real estate is based on what is 
called a " cadastre," or fixed valuation made by the 
government on a basis of area, productivity, value of 
buildings, etc. The part of this valuation referring 
to land remains unchanged for a long time together 
(1821-90). That on buildings has been frequently 
revised. The former portion of the tax is apportioned, 
that is to say, the government decides on a total sum 
and collects it from the departments in proportion to 
the valuation of their land, the rate thus varying as in 
the United States. In the case of the latter portion of 
the tax, the government fixes the rate and takes the 
proceeds. It is the duty of the local authorities in the 
arrondissements to share the apportioned tax among 
the communes •, but as the valuation on which they 
proceed is made for them, they are in a totally dif- 
ferent position from that of the American assessors. 
The so-called personalty and persons tax (^impbt mo- 
hilier et personnel) is in reality an apportioned tax 
on houses together with a capitation tax of the value 
(according to locality) of three days' labor. Finally 



326 THE STRUCTURE OF THE GOVERNMENT 

the " door and window tax " is an apportioned tax on 
houses. 

It has been necessary to show the nature of these 
direct taxes in order to explain the French system of 
local taxation. The local revenue is obtained by the 
addition of a certain percentage to the sums thus col- 
lected. The " centimes additionnels " as they are called, 
are settled by the central government, and collected 
by its agents. It is for this reason that it can be said 
of the general council of the department that it has no 
power of taxation. The " centimes additionnels," or 
sur-tax, added to the "principal" of the French direct 
taxes, is greater than the principal itself. No sur-tax is 
added to the capitation tax mentioned above.^ 

In Prussia use is made of the octroi ^ as in France, 
its burden falling upon mill-ground articles, cattle, 
meat, etc. There are also, as in France, sur-taxes 
added to the direct taxes of the state government and 
other direct taxes whose proceeds go wholly to the 
local authorities. The direct taxes of the first class in- 
clude the income tax and the tax on circulating busi- 
ness ; those of the second class comprise the taxes on 
land, houses, and fixed business. The extra percentage, 
or sur-tax, actually collected varies greatly, but is 
under the control of the central government. The land 
assessment is made by commissioners appointed by the 
state government, together with a staff of technical 
experts in each province. The persons liable to the 
income tax are divided into classes within which all 
pay the same. The assessment is made by a special 

^ In some cases, however, " extra centimes " are added to the fixed 
tax for state purposes. ^ The octroi is not used by Berlin. 



LOCAL GOVERXMEXT 327 

board in each circle or county, partly appointed by 
the local authorities, but in the majority elected by the 
persons liable to the tax. Unfortunately the method 
of ascertaining income has not 2)roved satisfactory. 
Till recently (1891), the board relied largely on cir- 
cumstantial evidence of income (style of house, obvious 
expenditure, etc.). The objection that this was an in- 
quisitorial proceeding led to the adoption of self-assess- 
ment by declaration. In spite of the severe penalties 
for fraud, a great part of income escapes. The mode 
of assessing the business tax is peculiarly interesting. 
The French system of classification by industries and 
by population of locality was abandoned in 1891. 
Instead of it businesses are grouped into four classes 
on a joint basis of capital invested and earnings made. 
The assessment of the top class is made province by 
province, by assessors of whom one third are nomi- 
nated by the minister of finance, and two thirds by the 
committee of the province (the executive committee 
of the elected portion of the provincial government). 
The tax amounts to about one per cent of earnings. 
The two middle classes are taxed district by district 
(JBezirk)^ and the lowest class is taxed in each "circle," 
or county. The government assigns a lump sum (based 
on the average earnings of included businesses) to 
be collected from all businesses of the same class in 
the same district (or minor district), and this is shared 
among the individual business concerns by a tax com- 
mittee elected from their number. It must be observed 
that this elected committee has no power to spare its 
constituents as a total. This form of tax has proved 
singularly efiicient. 



328 THE STRUCTURE OF THE GOVERNMENT 

9. Reform of the American System. Let us 

now in the light of what has been said in regard to 
foreign countries consider some of the chief proposals 
for the reform of the American system of local taxa- 
tion, and the steps that have already been taken in 
that direction. In the first place we have the frequent 
suggestion of a more stringent enforcement of existing 
laws. This is what has been done in Ohio under the 
" tax inquisitor law," whereby county commissioners 
engage an individual to " discover " personal property, 
paying him a proportion of the tax thereby realized. 
In view of the obnoxious character of the property tax 
so generally condemned, mere rigor of enforcement 
only aggravates the situation. The Ohio system intro- 
duces a feature of management which should have no 
place in public administration, except in dealing with 
the criminal class. Nor is the system of making the 
legal assessment value (as recently done in Chicago) 
only a fraction of the true value, of any permanent 
efficacy. It affords, it is true, the opportunity for a 
general repentance and a new start, but the viciousness 
of the assessment system is not altered thereby. The 
proposals which appear to be substantiated by the expe- 
rience of foreign countries are (1) the separation of the 
sources of state and local revenue, and the abandoning 
of the system of apportionment, (2) the abolition of the 
property tax on personal property, and (3) the creation 
of other forms of revenue to fill the void thus created 
and to satisfy the equities of taxation. 

The first of these proposals has been endorsed by 
the American League of Municipalities, by the New 
York State Commerce Convention, and by various 



LOCAL GOVERNMENT 329 

other bodies. In Oregon under a statute operative in 
1905, apportionment of state taxes among the coun- 
ties is abandoned. The proportion of state taxes 
paid by each county will depend on the ratio of its 
own expenditure to the total expenditure of the coun- 
ties. The Industrial Conunission in its Final Report 
(1902) recommends that the states (not the localities) 
abandon the property tax altogether. In the second 
place the abolition of the tax on personalty would 
leave only land and buildings subject to the property 
tax. The motive for concealment would be lessened, 
since there would no longer exist the sense of injustice 
at the escape of personalty from a tax to which it was 
legally liable. The experience of England and Prussia 
certainly falls in with the suggestion of the commission 
that this tax should be for local purposes only. It might 
seem advisable that when the system of elected asses- 
sors exists it should be abandoned in favor of assessors 
appointed by the government of the state and holding 
an independent tenure of office. Such a suggestion is 
but little consonant with the current political ideas of 
American people. But the experience of European 
countries certainly favors it. A valuation of land on 
the French system by general survey and estimate 
would reduce that portion of the tax to a stable basis. 
In reference to the third question, that of creating 
other sources of revenue, much has already been done 
in some states and there is much that naturally sug- 
gests itself. The successful business taxes of Prussia 
and France seem to indicate a useful form of taxation. 
The Industrial Commission recommends the adoption 
of taxes of this nature as a supplement to the property 



330 THE STRUCTURE OF THE GOVERNMENT 

tax. In several of tlie Southern states there already 
exist "licenses" or "privilege taxes" which are of 
this kind. They are by no means so elaborate as the 
Continental taxes, varying only according to population 
or other evident criteria, but not proportional to the 
volume of business transacted. A more elaborate form 
of business tax with the Prussian system of assessment 
would be a decided gain. The taxation of income is also 
recommended by the commission ; theoretically the in- 
come tax is the most equitable of all, but experience 
shows it liable to grave inequalities. It might well 
form a part of a reconstructed tax system for state 
purposes, especially if income from real estate were 
omitted, being already taxed under the local property 
tax, and if the English system of tapping the iucome 
at its source were put into force. Separate income taxes 
have recently been levied in Virginia, North Carolina, 
and South Carolina. Massachusetts has an income tax 
which exempts income from taxed propert}^ and which 
dates from colonial times. Pennsylvania and Louisi- 
ana attempt, but not very successfully, to tax income 
under the property tax. An amended taxation of cor- 
porations — which are now taxed in various ways, 
on the value or on the cost of property, on capital 
stock, on bonded debt, on gross earnings, on dividends, 
on net earnings, etc. — is also proposed. In summary 
it may be said that what is needed is a complete recon- 
struction of local taxation. The general object should 
be to avoid the present evils of competitive under- 
assessment and invisible property and to institute a 
new composite system of revenue calculated to prop- 
erly distribute the burden of taxation. 



LOCAL GOVERNMENT 331 

READINGS SUGGESTED 

Hart, A. B., Actual Government (1903), part iv. 

Courtney, L., The Working Constitution of the United Kingdom 

(1901), part ii, chap, i, pp. 205-220. 
Lowell, A. L., Governments and Parties in Continental Europe 

(1897), vol. i, chap, i, pp. 36-43, 308-334. 

FURTHER AUTHORITIES 

Odgers, W., Local Government (1901). 
Eaton, D. B., Government of Municipalities (1899). 
Ducrocq, Cours de Droit Administratif, vol. i (1881). 
Seligman, E. R., Essays in Taxation (3d edition, 1900). 
Report of the Industrial Commission, vol. xix. 
Ely, R., Taxation in American States and Cities (1888). 
Leroy-Beaulieu, P., Traits de la Science des Finances (6th edi- 
tion, 1899), vol. i. 
O'Meara, J. J., Municipal Taxation at Home and Abroad (1894). 
Jenks, E., Outline of English Local Government (1894). 
Bryce's American Commonwealth (1889), vol. i. 
Fiske, J., Civil Government in the United States (1891). 



CHAPTER VIII 

PARTY GOVERNMENT 

1. Conflict of Opinion on the Merits of Party Government. — 2. Orig"in 
and Development of the Party System in England. — 3. Origin and 
Growth of Political Parties in the United States. — 4. The Organiza- 
tion of American Political Parties. — 5. Reform of the System. — 6. 
Party Machinery in Great Britain. — 7. The Party Groups of Con- 
tinental Europe. 

1. Conflict of Opinion on the Merits of Party 
Government. By a political party we mean a more 
or less organized group of citizens who act together as 
a political unit. They share, or profess to share, the 
same opinions on public questions, and by exercising 
their voting power towards a common end, seek to ob- 
tain control of the government. They constitute some- 
thing like a joint stock company to which each member 
contributes his share of political power. They are thus 
collectively able to acquire the strength which it would 
have been impossible for them, acting singly, to obtain. 
In all except the autocratic modern governments this 
system of deliberate collective action supplies the mo- 
tive power which keeps the wheels of administration 
moving. Though standing almost outside of the legal 
structure of the state, party government is the vital 
principle of its operation. The Constitution of the 
United States does not indeed presume the existence 
of political parties ; but in the evolution of American 
government in the nineteenth century, they have come 



PARTY GOVERNMENT 333 

to be its central feature. In the United Kingdom the 
law of the constitution knows nothing of any such in- 
stitution. But the customary operation of the Constitu- 
tion is altogether based on the supposition of this sort 
of collective action. For the whole cabinet system 
— which we have seen to be the central fact of Brit- 
ish government — presupposes the united action which 
alone can render its existence possible. The countries 
which have deliberately adopted parliamentary govern- 
ment — France, Italy, Canada, Australia, etc. — have 
done so on the same assumption. The law cannot, in- 
deed, expressly decree the existence of parties, but it 
can set up institutions, as in the countries named, which 
become meaningless without them. For a proper study 
of modern government it is, therefore, necessary to take 
full account of this form of joint political effort and to 
study the organization and operation of modern parties. 
We may thus form some judgment as to the value and 
efficiency of the political expedient thus devised. 

Party government, indeed, has been variously judged. 
It has been extolled as the most natural and con- 
demned as the most unnatural of political phenomena. 
Those who judge it harshly are shocked by the pecu- 
liarly artificial agreement which it sets up among the 
group of party adherents, and their equally artificial 
disagreement with their opponents. Each side remains 
in a state of willful inconvincibility, with individual 
judgment frozen tight in the shape of the party mould. 
This kind of unanimity seems to its critics false and 
injurious; it suppresses that very freedom of individ- 
ual opinion and action which is meant to be the vital 
principle of democratic government. Where two great 



334 THE STRUCTURE OF THE GOVERNMENT 

political parties dispute the field, it presumes, as has 
been said by Professor Goldwin Smith, " a bisection of 
human character," which does not in reality exist. 
Those who defend party government take an entirely 
opposite ground. They draw attention to the fact that 
in a certain sense the bisection of human nature is al- 
together in accordance with fact. There are naturally, 
they claim, ^ four kinds of men, — those who wish to 
return to the methods and institutions of the past (re- 
actionaries), those who wish to retain those of the pre- 
sent (conservatives), those who wish to reform present 
institutions (liberals), and those who desire to abolish 
them (radicals). If for evident reasons of expediency 
the two former classes and the two latter act together 
politically we get a division into two great political 
parties, resting on fundamental psychological princi- 
ples. It is further argued that far from being in con- 
flict with the theory of democratic government, it is the 
only thing which renders the latter feasible. For it is 
impossible for all the people to rule all the time — 
taken singly. The rule of the people can only mean 
the rule of a majority. Now the only way in which any 
particular set of people can remain together as a major- 
ity, and thus render possible a stable and consistent 
administration of public affairs, is that the members 
of the ruling group shall " agree to agree " with one 
another. A modern democratic state without this 
somewhat artificial and yet essential unanimity would 
become a brawling chaos of individual opinions. 

The validity of the two contentions thus urged will 
depend in some measure on the circumstances of the 

^ See W. E. H. Lccky. Democracy and Liberty. 



PARTY GOYER^^MENT 335 

time and country. It often happens — as in the case 
of the slavery question or the silver question in the 
United States, the free-trade question in England, etc. 
— that some one paramount political issue presents it- 
self which of necessity separates the community into 
affirmative and negative divisions. The importance of 
the issue is such that the supporters of either side are 
perfectly willing to subordinate to it all minor matters 
and to act in concert in everything for the sake of the 
main point to be gained. Two free-traders or two free- 
silver men might consent to vote and act together, and 
to put their interests into the hands of the same repre- 
sentative, even if the one of them was a prohibitionist 
and the other an anti-prohibitionist. It is in such cases 
as this that the party system seems eminently a defen- 
sible one ; it offers a natural and reasonable method of 
reaching the main object to be achieved. This was the 
condition in the United States in the middle of the cen- 
tury. It was also the chronic condition in England dur- 
ing a large part of the nineteenth century, the general 
idea of liberal reform being opposed to the general im- 
mobility of conservatism. It was owing to the existence 
of this state of things that party government grew to be 
invested with an air of inevitability, and seemed to carry 
with it its own defense. On the other hand, where no 
such main issues exist the party system must depend for 
existence on the streno^th of its oroanization. It must 
have pledges first and principles after, and its members, 
having first decided to agree, nuist next make up their 
minds what it is they agree about. This is the present 
position of the party system in the United States. Fail- 
ing this, for default of a main issue, political parties will 



336 THE STRUCTURE OF THE GOVERNMENT 

take the form of numerous and rapidly changing groups, 
the government being carried on by temporary and 
unstable combinations, and the parties, having neither 
traditions nor standing power, being animated with a 
dangerous sense of irresponsibility. This is the position 
of affairs in France, Ital}^, and several Continental 
countries. At the present juncture, then, the party sys- 
tem meets with keen criticism and speculation is rife as 
to its future evolution. 

2. Origin and Development of the Party Sys- 
tem in England. The origins of party government 
are found in England and may be considered as dat- 
ing from the Elizabethan era. The Puritans, opposed 
to the intolerance and the extreme prerogative of the 
queen's government, exerted themselves to gain seats 
in Parliament, where their representatives acted as an 
organized party in arresting the royal grants of mono- 
polies, etc. On the basis thus formed grew up the popu- 
lar party, whose cohesion was rendered stronger by the 
arbitrary government of the Stuart kings. '' Sandys, 
Coke, Eliot, Selden and Pym, may be regarded," says 
Sir Thomas May,^ " as the first leaders of a regular par- 
liamentary opposition." As the resistance to the royal 
tyranny increased, the defenders of popular rights and 
the adherents of the crown changed from political par- 
ties to the opposing factions of a civil war. But after 
the Restoration the same parliamentary division reap- 
pears under the name of the Court Party and the Coun- 
try Party of the reign of Charles II. With the debates 

1 Sir T. E. May (Lord Farnborough), in his Constitutional History, 
vol. ii, chap, viii, gives an account of the rise and development of the 
party system in the United Kingdom. 



PARTY GOVERNMENT 337 

over the Exclusion Bill of 1680 (for debarring the 
king's brother from the throne) the nicknames of 
Whig and Torj (terms equivalent to "dough-face" and 
"highwayman") first appear. Henceforth for a century 
and a half these names indicate the two great political 
parties by whom the parliamentary activity of the 
United Kingdom was controlled. The Whigs were the 
opponents of the royal prerogative and the adherents of 
the doctrine of parliamentary supremacy ; the Tories 
advocated the power of the crown. Their relation to 
the later parties must not be mistaken. Neither was by 
its origin the party of progress or reform ; neither the 
party of stability or order. They represented merely 
two different theories of English constitutional relations. 
After the accession of the House of Hanover the two 
parties found their positions curiously reversed. The 
Whigs, the opponents of prerogative, were the support- 
ers of the new dynasty, while the Tories, the advocates 
of prerogative, were the opponents of the holder of the 
crown. This blunted the edge of their original hostility, 
and helped to convert them from the position of inim- 
ical factions to the decorous and official form of opposi- 
tion since maintained. Moreover the practical triumph 
of the principle of parliamentary supremacy, and the 
recognition of the hopelessness of the Stuart cause, led 
to an alteration in the distinctive characteristics of the 
two groups. From the accession of George III onwards, 
the Whigs tended to become the advocates of reform 
and progress ; the Tories placed their faith in order and 
security. Thus the two changed into the great Liberal 
and Conservative ])arties of the nineteenth century. The 
doctrine of liberalism favored the increased " democrat- 



338 THE STRUCTURE OF THE GOVERNMENT 

ization" of the constitution, the grant of equal political 
privileges to all, the abolition of the remaining religious 
disabilities and tests, the establishment of economic lib- 
erty of trade and industry. To this the Conservatives 
opposed the historic view of political rights that had 
grown up under the constitution, the safeguarding of 
vested interests, and the resistance of dangerous inno- 
vation. But since the middle of the nineteenth century, 
these original characteristics of the two parties have 
largely been obscured. The Conservative administra- 
tions have participated in many of the great reforms 
of the latter part of the nineteenth century, — the ex- 
tension of the suffrage, the reform of local government, 
of Irish land tenure, and so forth. The present complex- 
ion and organization of party life in the United King- 
dom will be considered in a later paragraph. 

3. Origin and Growth of Political Parties in 
the United States. In America we may consider dis- 
tinct political parties as beginning with the colonial 
controversies of the eighteenth century. The standing 
opposition of the representative portion of the colonial 
governments to the governor and his associates, natu- 
rally divided political sympathy on much the same lines 
as in the mother country. As in England during the 
Stuart period, the war of the Revolution changed tlie 
partisans into armed combatants. But with the making 
of the first truly national government (1787) political 
parties reappear on an entirely new basis. Those who 
favored the establishment of a strong central govern- 
ment became known as the Federalists, while those in 
favor of the restriction of the federal power were 
termed Anti-federalists. After the adoption of the Con- 



PARTY GOVERNMENT 339 

stitution the term Federalist indicated those in favor 
of consolidating and strengthening the federal power, 
while those in favor of the rights of the states were 
called Republicans. The latter, being supported by 
the general trend of public opinion in favor of the 
rights of the individual and the restriction of govern- 
mental functions to a minimum, then current both in 
Europe and America, eventually carried the day. The 
Federalists declined in numbers and influence, and 
in the early twenties were practically extinct. Their 
opponents had in the early years of the Constitution 
strengthened their hold upon popular sympathy by 
adopting the name Democratic Republican, which has 
developed into the present term of Democrat. After 
the disappearance of the Federalists, the absence of 
definitely marked political parties led to a sort of inter- 
regnum known historically as the Era of Good Feeling ; 
this designation and the lapse of time has surrounded 
with an undeserved halo a decade which "was really," 
says Professor Hart, " a period of bitterness and rancor 
and legislative ineptitude." ^ 

With the advent of Andrew Jackson (1829) the 
Democratic party entered on a new phase, in which it 
stood for extreme individualism, the extension of the 
suffrage, and the rights of " the people " in the special 
sense of the term. This raised up in opposition the 
party of the Whigs, advocates of strong government, 
national improvements (roads, canals, etc.), and a pro- 
tective tariff. The rising predominance of the question 
of slavery (1820-1860) sundered the W^hig party and 
removed them from the political arena. In their place 

1 Actual Government (1003). 



340 THE STRUCTURE OF THE GOVERNMENT 

sprang up anti-slavery parties of different degrees of op- 
position. The voting strength of these was finally gath- 
ered together as the Republican party, opposed to the fur- 
ther extension of slavery, though not (as a party) opposed 
to its existence. The Civil War removed the main issue 
by abolishing slavery. Since then the same two great 
parties have remained in name, but their evolution in 
the last forty years has rather taken the form of a 
consolidation of the organization of party structure 
than a collective adherence to any single principle or 
policy. The Republicans are in favor of protection, but 
the Democrats are certainly not free-traders. The 
Republicans, but not all of them, are in favor of the 
gold standard, and for a time some of the Democrats, 
but not all of them, opposed it. The states of the South 
have remained solidly Democratic, but this is by the 
historic continuity with past conditions. The plain 
truth is that both parties are largely opportunistic, 
adapting their policy on current questions to the cir- 
cumstances of the day, and mainly governed in their 
selection of political opinions by the probability of 
political success. The party organization has become 
the leading factor, and the party opinions have taken a 
secondary place. A Republican is no longer to be de- 
fined as a man who holds such and such opinions, but 
as a man who adheres to the Republican organization 
and will support its candidates. At present, then, the 
striking fact in connection with American political 
parties is the complete mechanism of their organiza- 
tion. 

4. The Organization of American Political 
Parties. That parties should have become highly or- 



PARTY GOVERNIMENT Sil 

ganized is the natural outcome of the circumstances of 
the country. Among the contributory causes are to be 
noted in the first place the disjunction of executive 
and legislative power, which naturally calls for a bond 
of union in the shape of a party organization.^ To 
this we must add the great extent of territory to be 
covered, the impossibility of selecting candidates for 
the presidency, or for the state governorshijDS, secre- 
taryships, etc., in any purely spontaneous fashion. Nor 
is there under the American system any set of per- 
sons among those holding j)ower who are placed in the 
same position of evident party leadership as has always 
been the case with the party leaders in England. The 
attempt of the members of Congress to assume this 
position and to nominate candidates for the presidency 
in a party " caucus," soon fell into disrepute, and in 
1824 broke down altogether. The similar attempt 
of the state legislatures in the decade following was 
equally ineffective. In place of this there sprang up in 
the twenties, in accord with the general American idea 
of the sovereignty of the people, the practice of hold- 
ing a special " convention " or meeting of representa- 
tives selected by the members of a political party, to 
make the choice of its candidates. The system thus 
established grew apace. As long as the great slavery 
issue was before the nation, the convention failed to 
give to the political parties the highly mechanical as- 
pect they have since assumed. But from the close of 
the Civil War the machinery has become more and 
more definite, until it has reached the elaborate form 
in which it now exists. 

^ See in this connection F. Goodnow, Administration and Politics. 



342 THE STRUCTURE OF THE GOVERNMENT 

The scheme of its construction is as follows.^ Its 
organization follows the division of areas made for the 
purposes of elections. In each of these a special meet- 
ing of party adherents is held for the selection of candi- 
dates. The basis of it is found in what is known as the 
primary, often called a " caucus," in the New England 
states. In theory this consists of a meeting of all the 
qualified party voters resident in the smallest voting 
area : township, county, or precinct, as the case may be. 
In actual fact it is only a minority of the voters of the 
party who are to be found at a meeting of the primary. 
Many absent themselves from indifference, others for 
lack of the technical requirements for admission. 
Others properly qualified are excluded by unfair 
means. This is particularly true of primaries held in 
urban areas, where the voters have but little individ- 
ual acquaintance with one another. The duty of a pri- 
mary meeting is threefold. It appoints the standing 
committee of the party for that area, it nominates 
party candidates for the elections held in its district, 
and, most important of all, it sends up delegates to the 
party meetings held in the area of which its own forms 
a subdivision. In these larger areas, such as a con- 
gressional district, or state assembly district, or state 
senate district, it is impossible for all the voters to be 
gathered together. In them, therefore, the party meet- 
ing takes the form of a " convention," composed of 
delegates sent from the primary meeting. The func- 
tions of such a convention are similar to those of the 

1 Mr. Bryce's admirable description of party machinery in the 
United States, American Commomvealth, vol. ii, part iii, has never been 
surpassed. For more recent information see Hart, Actual Government. 



PARTY GOVERNMENT 343 

primary itself. It appoints a committee, it makes nom- 
inations for office in the district, and in the case of 
some areas it sends up delegates to the state conven- 
tion. The state convention similarly nominates candi- 
dates for the governorship, etc., appoints the state party 
committee, and sends delegates to the national conven- 
tion held once in four years. ^ This national convention 
stands at the apex of the system. It is held for the 
selection of the party candidates for the presidency of 
the United States. It consists of twice as many mem- 
bers as the state has members of Congress, two dele- 
gates being sent from every congressional district, and 
four from each state at large ; these together with six 
representatives from each territory make the full com- 
plement of a national convention. A duplicate set of 
members known as " alternates," or substitutes in case 
of accident, are also appointed. The convention thus 
constituted draws up the national platform of the party, 
and makes its nominations for the presidency. The 
nomination is made by ballot ; in the Republican party 
a simple majority suffices, in the Democratic a majority 
of two thirds is needed. In the Eepublican party the 
members of the delegation sent from a state may vote 
individually for different persons ; in the Democratic 
party they must vote as a unit for the same person. 
The Democratic convention of 1912 abrogated the unit 
rule except where demanded by state law. 

The system as thus planned is beautiful in the 
symmetry of its organization. It seems to offer a thor- 

^ Delegates are sent to the national convention from the state con- 
ventions, or from the congressional district conventions. In any case the 
four delegates corresponding to the representation of the state in the 
Senate are sent from the state convention. 



344 THE STRUCTURE OF THE GOVERNMENT 

oughly just method of selecting party candidates, and 
one in which all are equally entitled to participate. 
But unfortunately in practice it has opened the way to 
the gravest political abuses. In the first place it makes 
a considerable demand upon the time and energies of 
the voters, a demand rendered all the greater by the 
multiplicity of American elections. There is a natural 
temptation for the voter to stay away from the pri- 
mary, and to content himself with whatsoever candi- 
dates it may select. The conduct of the primary, and 
as a consequence, of the superior coventions to which 
it is contributory, thus falls under the control of the 
professional " politicians " and their hangers-on. Hence 
arises the now familiar phenomenon of the " party 
ring " and the party " boss," for whom the elabo- 
rate system of party machinery serves as a ready- 
made instrument of political control. The more the 
primary falls under the control of an inside ring, the 
more are the ordinary citizens tempted to stay away 
from it, deploring its vices, yet unable single-handed 
to combat them. In the city primaries the number of 
those entitled to vote, who actually do vote, is seldom 
more than one third, and often drops to the merest 
fraction. Even the number of those entitled to vote 
in the primaries has often been only a small part of 
the voters of the party. For as long as the primaries 
remained self-constituted bodies, it was possible for 
them, as for example in New York, to adopt exclusive 
rules of admission which shut out all but the favored 
few. The persons who were entitled to vote in a pri- 
mary, and actually did vote, became only a fraction of 
a fraction. Indeed the whole of the elaborate party 



PARTY GOVERNMENT 345 

machinery that we have described comes to be operated 
not from its own spontaneous force, but at the bidding 
of the clique of inside politicians, who " work the ma- 
chine." Instead of the real selection by a party con- 
vention, we have the adoption by the convention of a 
" slate," or list of names already prepared for them. 
The worst feature of all is the class of men thus 
brought into American politics, and the point of view 
they bring with them. The nature of the party ma- 
chine lends itself to repel the honest and to attract the 
unscrupulous. Relatively few men have sufficient pub- 
lic spirit to consent from purely patriotic motives to 
seek office by such obnoxious means. The opportunity 
is thus opened to second-rate, shifty, and self-seeking 
aspirants, to whom the whole party machinery merely 
offers a method of gaining an easy livelihood, embel- 
lished with a tawdry conspicuousness. Too much stress 
must not, however, be laid on the sinister side of Amer- 
ican party life. It is not true, as a foreign observer 
might be inclined to think, that the American people 
as a nation are corrupted by it. In moments of stress 
or in the presence of a great national crisis, the artifi- 
cial barriers set up by such a system are easily pushed 
aside, and the right men shoulder their way to the 
front of public life. But in the ease of quiet times, 
and in the absorbing prosperity of a great industrial 
civilization, the machine falls back again into the hands 
of those who make it their business to run it. 

5. Reform of the System. The (question of find- 
ing a remedy for the evils of a party machine has long 
been discussed. The only real and permanent cure 
would be found in rousing the ordinary voter from his 



346 THE STRUCTURE OF THE GOVERNMENT 

habitual indifference and absorption, and bringing bim 
to take an active interest in the exercise of his full 
political rights. This, however, is a matter quite beyond 
legislative control, and can only come with the growth 
of vigorous public sentiment in regard to the duties of 
a citizen, stimulated by the object-lessons afforded by 
rampant corruption. It may in any case be doubted 
whether, with the present system of short terms of office 
and numerous elections, such an active public life of 
the citizens at large could be gained without serious 
detriment to their other social activities. It would be 
easier to reform the operation of American parties, if 
the attempt were accompanied by the lengthening of 
elective tenure of office. Why, for example, should an 
elective officer hold office, as do a vast number in the 
United States, including two state governors — for one 
year only ? Or a member of a legislature, as is cus- 
tomary, for two years only ? There is nothing pecu- 
liarly democratic about the space of twelve months ; if 
change is a good thing in itself, why not hold a new 
election every month ? With fewer elections the ordi- 
nary voter would be able to concern himself more di- 
rectly with those there were, and the practical exclusion 
of the majority from political control would no longer 
be possible. 

Even within the limits of legislative action attempts 
have already been made to remedy the evil operation 
of the party system. The first of these is the plan 
of making the primary meeting of a political party 
a legally organized body instead of a self-constituted 
group. This is the intention of the so-called "primary 
election laws " which have been enacted within the last 



PARTY GOVERNMENT 347 

twenty years in most of the leading states. Massachu- 
setts, New York, New Jersey, Pennsylvania, Illinois, 
Ohio, Michigan, Maryland, South Carolina, Georgia, 
and other states have already adopted statutes of this 
kind. These laws provide that due public notice shall 
be given of the time and place of primary elections ; 
that the elections sliall be by ballot, and that the ex- 
pense shall be paid by the state. The laws are usually 
compulsory in cities and optional in rural districts. 
The above provisions still leave the question of admis- 
sion to the primary to be regulated by the party itself. 
But in some states the law goes further, and defines 
the qualification required for admission to the primary. 
There is no uniformity in the state laws in regard to 
admission to vote at a primary, but two leading systems 
may be distinguished. Some states hold " open prim- 
aries" at which the voter, by the use of the secret bal- 
lot, may cast his vote as he pleases without declaring 
to which party he belongs. In these cases the law has 
to be framed to prevent the voter from voting for more 
than one party. In other states " closed primaries " 
are established. Admission to vote in a closed primary 
implies some test of party allegiance, such as the decla- 
ration of allegiance exacted in California and Minne- 
sota, or the pledge of support to the candidate selected 
required under the law of Louisiana and Texas. In 
other states the authorities of the party itself are al- 
lowed by law to prescribe the test of membership. 

Thus far we have spoken of the primary only as an 
instrument for the selection of party candidates for 
the local area and party delegates for the superior 
conventions. But the reform of the primary system 



348 THE STRUCTURE OF THE GOVERNMENT 

has brought not only the " legalization " of primary vot- 
ing as described above, but a further change in the 
function of the primary itself. This new feature is 
embodied in what is called the direct primary or direct 
nomination. The general aim of the plan is to elimin- 
ate the convention altogether and cause all recognized 
party candidates to be selected by a vote of the people 
gathered in the primary groups. Under this method 
prospective candidates for office may announce their 
names to the public in any way which they see fit to 
use or their names may be unofficially placed before 
the public by any group of supporters. Hence the 
names of any number of aspirants for the position of 
candidate of a recognized party may be unofficially 
announced. When the direct primary, or direct nom- 
ination, is held each citizen votes for one of these 
names, or for any other name which he writes in on 
his ballot, as his choice for the candidate of one or 
other political party. The persons receiving the highest 
number of votes in each party become the recognized 
candidates and, presumably, the supporters of the 
beaten nominees will transfer their votes to them on 
the day of election. In this way the primary meetings 
can nominate candidates for various state offices with- 
out an intermediary convention. They can nominate 
candidates for United States senatorships on whose 
names the two or more parties in the legislature will 
vote. Finally they can, and they do, indicate their 
preference for this or that aspirant for the position of 
party candidate in the presidential election. 

The system of direct nomination has made enormous 
progress. In 1912 state officers were directly nomin- 



PARTY GOVERNMENT 349 

ated in 36 states, members of the House of Represent- 
atives in 39, and United States senators in 34 states. 
In eight states the law provided for the selection of 
delegates to all national conventions by direct nomin- 
ation. The system has called forth unlimited enthus- 
iasm and become the subject of extreme laudation. 
Its advocates see in it the end of machine politics, of 
ready-made conventions, and of the rule of a self -chosen 
clique of bosses and party managers. It is more than 
possible, however, that the advantages of direct nom- 
ination are overrated. After all, the organization and 
the machinery set on foot by the political managers 
can move one stage back, and, in the indifference of 
the general voter, preface the direct nomination itself 
by a preliminary and machine-made choice. Unless 
direct nomination can bring with it a more active pub- 
lic spirit and more general participation in civic con- 
cerns, it will go the way of the machinery which it 
displaces. Here as elsewhere the forms of government 
are of no avail without the spirit. Moreover, serious 
critics of direct nomination are already calling atten- 
tion to the fact that it tends to shut out deliberation 
and the opportunity for collective discussion afforded, 
ideally at least, by a party convention. 

6. Party Machinery in G-reat Britain. In the 
United Kingdom party machinery is not found in the 
same highly organized state as in the United States. 
This has been due to the fact that it is not so necessary. 
The cabinet system, as has been seen, puts executive and 
legislative power into the same hands. In America the 
party organization forms the connection by which the 
two legally distinct branches of the government are 



350 THE STRUCTURE OF THE GOVERNMENT 

brought into harmony. This function therefore is not 
needed in England. Add to this the fact that the 
English parliamentary elections are much less numer- 
ous than the various elections for federal and state 
offices in the United States. Nevertheless the use of 
regular party machinery is growing in Great Britain ; 
though long regarded by many English people with dis- 
favor as an American importation, its obvious utility 
for election purposes has ensured its adoption.^ At 
the centre of English party structure stand two great 
political organizations, — the National Conservative 
Union and the National Liberal Federation, — whose 
headquarters are in London. Of these bodies affilia- 
tions are formed in each polling district of a parlia- 
mentary constituency, made up of the active adherents 
of the party in that area. This is the germ cell of party 
structure, corresponding to the American primary. It 
elects representatives to a party council of the whole 
constituency, and from these constituency councils re- 
presentatives are sent to form a council for the whole 
county or borough. Finally this last council elects 
representatives to the central body at London. The 
party leaders in Parliament naturally exercise a con- 
trolling influence, somewhat as the congressional 
caucus of the early nineteenth century aspired to do. 
The caucus broke down because under the American 
federal system the national congress is not the sole 
and supreme organ of national political life. But the 

^ Few works on British government contain any reference to party 
organization. President Lowell's masterly work, The Government of 
England (1908), contains an admirable discussion of the topic, part ii. 
See also Ostrogorski, Democracy and the Organization of Political Parties, 
and Mr. Winston Churchill's Lord Randolph Churchill, esp. ch. vii. 



PARTY GOVERNMENT 351 

different situation in which the British Parliament is 
placed naturally puts the party leaders in a position 
to exercise a radiating control over all the constituent 
cies. The affiliated branches of the organizations men- 
tioned act as the means of giving definite direction to 
this control. With the gradual evolution of the " party 
convention'^ the system of party "platforms" is begin- 
ning to appear. Authoritative " open letters " or ad- 
dresses of the great party leaders and resolutions passed 
by the councils, constituencies, etc., are of this charac- 
ter. Candidates are still selected in somewhat irregular 
and varying fashion, accentuated by the fact that resi- 
dence in the constituencies is not needed as a qualifi- 
cation. The custom of reelecting the same person again 
and again obviates the necessity of making a selection. 
If a new choice must be made, it is done either by the 
constituency council, or if they cannot agree, the central 
council at their suggestion proposes a likely candidate 
to them, or even indicates two or three from whom 
they may select. 

7. The Party Grroups of Continental Europe. 
On the continent of Europe party governance presents 
certain features differing markedly from the situation 
hitherto existing in America and Great Britain. In- 
stead of two great political parties overshadowing all 
others, and alternating in the control of the govern- 
ment, we find in France, Germany, and Italy a consid- 
erable number of party groups, no one of wliich is 
strong enough to outnumber all the others. In France 
and Italy, this is a particularly disturbing element in 
public life, since the administration of those countries 
is based on the cabinet system, rendering the executive 



352 THE STRUCTURE OF THE GOVERNMENT 

government dependent on the continued support of a 
majority in the lower house of the legislature. Under 
the group system of party life, no one party is able to 
afford that support. It must therefore be obtained by 
means of a coalition of separate parties whose mutual 
support is given purely for reasons of expediency, and 
may be withdrawn at any time in favor of a more pro- 
fitable combination. It is to this fact that is due the 
notorious instability of French ministries under the 
Third Republic. There exist in France four chief party 
groups, with many subdivisions and combinations. The 
chief lines of political cleavage are marked out by the 
terms. Conservative, Republican, Radical, and Socialist. 
The Conservatives include the remnants of the older 
monarchical parties, once divided into Imperialists, Or- 
leanists, and Legitimists, but now representing rather 
the opposition to advanced democracy than the hope of 
a monarchical revolution. The recently formed group 
of Nationalists is a reconstruction of conservative ele- 
ments. The Republicans have stood first and foremost 
for the maintenance of the Third Republic as estab- 
lished, without aiming at the advanced social reforms de- 
manded by the Radicals. The Socialists differ from the 
latter in wishing to break entirely with individualism 
and found a cooperative commonwealth. French Social- 
ists have been much divided both as adherents of rival 
leaders and as exponents of rival doctrines, — munici- 
palism versus the central state, opportunism versus no- 
compromise, etc. No one of these parties has ever been 
strong enough to maintain a ministry by its support. 
Hence all the ministries (but one), from the beginning 
of the true republican era under President Gr^vy until 



PARTY GOVERNMENT 353 

1905, have been formed with Republicans as the nu- 
cleus and with fortuitous support. The Bourgeois min- 
istry (1895-96) was chiefly radical and the ministries 
from 1905 till 1912 were based on a combination of 
radicals and socialists. The instability which naturally 
resulted has been aggravated by the methods of French 
legislative procedure, it being customary for the cabinet 
to resign even if defeated on matters of minor moment, 
or in consequence of an " interpellation " ^ in the Cham- 
ber of Deputies. Even the members of the cabinet 
itself are less interested in its continuance than is the 
case in England, since they may very possibly them- 
selves form part of the reconstructed cabinet which 
supplants it. The relation of political parties to cabi- 
net government thus stands upon quite a different foot- 
ing in France from what it does in the United King- 
dom. Indeed the commendation which it has so largely 
met in the latter country rests on the presumption of 
the existence of two great parties as a sort of natural 
phenomenon likely to continue. The absence of such 
in France upsets the whole calculation. In Italy and 
in the German empire, there is the same subdivision 
of party groups. The elections to the German Reichs- 
tag of January, 1912, showed at least a dozen different 
parties. The Reichstag contains 397 members, but 
even the most numerous of the parties, the Socialists, 
had only a hundred and ten seats. Several of the par- 
ties (anti-Semites, Guelphs, etc.) had less than a dozen. 
The subdivision of parties is, however, of much less 

1 The " interpellation " difFera from the " questions " raised in the 
British parliament in that a debate on the point raised is allowed after 
the interpellation, hut not after a question. 



354 THE STRUCTURE OF THE GOVERNMENT 

national consequence in Germany than in France, since 
parliamentary government does not exist. 

Looking at the institution of party government gen- 
erally, it seems liable to one or the other of two grave 
dangers. If bisection of opinion on a paramount issue 
does not exist, then the consolidation of the party may 
become a purely mechanical affair. What was in its 
origin a natural bond of union may degenerate into 
the cohesion created by artificial party ties. On the 
other hand, where such cohesion, natural or artificial, 
is not forthcoming, parties assume the fragmentary and 
unmanageable form seen on the continent of Europe. In 
Great Britain, where the operation of the constitution 
in its present shape is dependent on party government, 
the situation of public affairs at the opening of this 
century is at a very interesting juncture. Within the 
last two decades the older line of cleavage has been 
intersected in all directions with new divisions. The 
adoption of the Home Rule policy by Mr. Gladstone 
(1886) divided the Liberals into Unionists and Home- 
Rulers. The adhesion of the former to the Conserva- 
tives partially healed the breach thus created. But 
with the close of the century the division into Imperi- 
alists and anti-Imperialists, Protectionists and Free- 
Traders, and other minor rifts of opinion has violently 
disturbed the formation of parties. The emergence of 
the parliamentary Labor Party as a powerful factor in 
the twentieth century further disturbs the situation. It 
remains to be seen whether the British political parties 
will disintegrate into groups, will adopt a formal system 
of union with pledges and platforms on the American 
plan, or will find some means of reverting to their 



ES (1912) 

House 



nied 


Electea 




96 


s of 


28 from 
Peers of 
Ireland; 1 
from Peer 
of Scotlan 









36 


1 


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ite) 


8. Electa 
by Landow 



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es of .Nobility 

ties, 

of ci- 

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and 10 elec 
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LUfithan Pari 



TABLE OF LEGISLATURES (1912) 



Composiiioii of Upper House 



Hereditary 



Constitutional Relation of the Two Houses 



United States 



L other biUB." Con- 



power over billa certified by the Speake: 
bills. Other bills, except those exteiidin 

ceasive seaaiona, two y( 
in the firet seaaion and 



Parliament, 

.yth - -~ 

having elapsed between the second readinj 

third reading in the third session. See ab 



British North A 



Proposed laws appropriating revenue or moneys or imposing taxation shall not 
Originate in the Senate. The Senate may not amend proposed laws imposing taxa- 
tion or proposed laws appropriating revenue or moneys for the ordinary annual 
services of the government." Commonwealth of Australia, Constitution Act, 
1900, § 53. 



Oyeare. One third 
of the senators 
retire every 3 



sooner dissolved 






Coordinate powers. " Imperial le^slation is effected by the ] 
Reichstag. The consent of the majority vote of both houses 
adequate for an imperial law." Constitution, act 5. 



Finance bills shall be aubmitted first t 



) Chamber of Deputies ; they s 



the Prus- 
n territo- 
rial nobility 



5 years unless 
sooner dissolved 



the Congiess." Constitution, : 



) and the public credit i 
-"-■■,§42. 



be first presented 






insent of the emperor is necessary for 
particular items, or in a law for raising 
ntingent to be raised, in despite of re- 
peated consideration no agreement can be reached by the two houses, then the 
lower sum proposed shall be considered as adopted." Fundamental Law of 21 
1867, § 13. 



If in a finance law in n 
1 regard to the number c 



Fbrendihaz 
(House of 
Magnates) 



£6pviseli>haz 
Depnties) 



5 years unless 



16 archdukes 
236 heredi. 
tary peers 



Coordinate. — Custom and Law of 1885, § 1 



5 ye are unless 



discretion 3 years 



(appoin 
Ibycan- 
ns) 



- Constitutional Ace Sir. 



■iS:iC'X"J"'fl 



Soie.'of p"o£ic''o 



PARTY GOVERNMENT 354a 

earlier condition of " natural '' opposition on a funda- 
mental question. 

READINGS SUGGESTED 
Ostrogorski, M., Democracy and the Organization of Political 

Parties (1902), vol. i, chap, viii, and vol. ii (especially) part 

ii. See also Mr. Bryce's preface. 
Bodley, J., France, vol. ii, bk. iii, chap. v. 
Godkin, E. L., Unforeseen Tendencies of Democracy (1898), 

Essay No. 3, The Nominating System. 
De Tocqueville, A., Democracy in America (1835), chap, x 

(Parties in the United States). 
Lowell, A. L., The Government of England, part ii. 

FURTHER AUTHORITIES 
Hopkins, J. H., History of Political Parties in the United States 

(1900). 
Macy, J., Political Parties in the United States, 1846-61 (1900). 
McKee, T. H., National Convention and Platforms, 4th edition 

(1901). 
Lowell, A. L., Governments and Parties in Continental Europe 

(1897). 
Ford, K. J., Rise and Growth of American Politics (1898). 
Bryce, J., American Commonwealth (1889). 
Macdonagh, M., The Book of Parliament (1897). 
Carr-Gomm, F. C, Handbook of the Administrations of Great 

Britain (revised edition, 1901). 
Hazell's Annual (yearly). 

Lecky, W. E. H., Democracy and Liberty (1896). 
Maine, Sir H., Popular Government (1880). 
Goodnow, F. J., Politics and Administration (1900). 
Young, Sir F., Exit Party (1900). 
May, Sir T. E. (Baron Farnborough), Constitutional History of 

England, vol. ii (especially chap. viii). 



PART III 
THE PROVINCE OF GOVERNMENT 



CHAPTER I 

INDIVIDUALISM 

1. The Individualistic Theory of the Fiinctions of Government. — 2. 
Individualism as based on a Theory of Justice. — 3. Based on a 
Theory of Profitability ; the Doctrine of Laissez Faire. — 4. Based 
on a Biological Analogy; the Survival of the Fittest. — 5. Con- 
flicting Forces. 

1. The Individualistic Theory of the Functions 
of Government. In the first and second divisions of 
the present volume we have considered the general na- 
ture of the state, and the constitution and structure of 
governmental bodies. The discussion of the form of 
government has of necessity preceded the treatment 
of the proper sphere of its operation. Yet in our own 
time the latter topic in practice assumes the place of 
paramount importance. The general opinion of civil- 
ized countries recognizes the validity of the principles 
of popular sovereignty and democratic government, — • 
whether expressed by means of a limited monarchy or 
in a republican form.^ It is generally admitted also that 
the adoption of popular government does not, in and 
of itself, as the sanguine theorists of a hundred years 

1 In stating that the general consensus of opinion is in favor of 
democracy, it is not to be denied that popular government has found 
occasional detractors among writers of reputation and ability. Sir 
Henry Maine {Popular Government, 188(5) declares it to be " extremely 
fragile," "not in harmony with the normal forces ruling human 
nature," and "apt therefore to lead to cruel disappointment or serious 
disaster." 



358 THE PROVINCE OF GOVERNMENT 

ago hoped it might, offer a solution of all our political 
and economic problems. Even granting that the gov- 
ernment is to be controlled by the people and for the 
people, we have yet to ask what is to be the proper 
sphere of its operation for the general benefit. We 
employ in ordinary discourse a variety of phrases to in- 
dicate the subject in question, speaking indifferently of 
the sphere of the state, state control, the functions of 
government, the province of government, etc. More spe- 
cial aspects of the problem are seen in connection with 
government ownership of railways, the control of trusts, 
and the management of public utilities. But whether 
in its general theoretical aspect or in particular form, 
the problem involved is emphatically the paramount 
question of the opening of the twentieth century. 
In the following three chapters we shall endeavor to 
deal with it in systematic form, considering one after 
another the solutions that have been offered in theory 
and practice to the open question of government con- 
trol. First we shall deal with the individualistic solu- 
tion, or system of natural liberty, to which we have 
already referred in a somewhat different connection in 
a preceding chapter. In the second place we shall 
discuss the ideals of collectivism, and the attempts 
that have been made for its partial realization. The 
discussion of the actual economic operations of mod- 
ern states on what may be called an individualistic 
basis modified to a great extent by utilitarian and 
opportunistic considerations, will be considered in con- 
clusion. 

To the treatment of the individualistic doctrine of 
the functions of government belongs of right the pre- 



INDIVIDUALISM 359 

cedence. For it constituted during a large part of 
modern times what might be called the official creed 
of enlightened governments ; was, until our own genera- 
tion, defended by the greatest theorists of the modern 
era, and although discredited in its extreme form, re- 
mains as the working basis of the economic operation 
of both the American and the British governments. 
The individualistic theory may be briefly stated in the 
proposition that the sole duty of government is to 
protect the individual from violence or fraud. Accord- 
ing to this theory the positive interference of the state 
with the individual even in his own interest is not justi- 
fied. Nor is the state justified in undertaking opera- 
tions of an economic character, or in imposing restric- 
tions (other than in prevention of violence or fraud) on 
the economic activities of its citizens. A schedule of 
government functions admissible on a purely individu- 
alistic plan would include the maintenance of an army 
and a navy, courts of justice and a force of police, the 
enforcement of a criminal law and of statutes in ref- 
erence to sanitation, adulteration of food, inspection 
of steamboats, etc., these being indirectly protective in 
their character ; but it could not comprise the con- 
duct of the post-office, the maintenance of hospitals and 
poor-houses, or the operation of railroads. Only such 
actions on the part of the state as were directed to pre- 
vent the interference of its citizens with one another 
would be legitimate. 

2. Individualism as based on a Theory of 
Justice. This system of individual liberty against 
the interference of government has been defended on 
different grounds. As a matter of justice it has been 



360 THE PROVINCE OF GOVERNMENT 

argued that the individual has a right to be let alone. 
On economic grounds it has been contended that it 
pays to let him alone. Lastly, on purely scientific 
grounds, it has been argued that it is in general conso- 
nance with the evolutionary nature of human progress 
that the individual should struggle for himself and 
survive, or fail, according to his fitness. The first of 
these arguments — the restriction of the operation of 
government to the defense of the rights of the indi- 
vidual — is especially found in the writings of the 
political philosophers of the later eighteenth and early 
nineteenth centuries.^ We find it in the theory of 
the state advanced by Kant and Fichte and following 
as a corollary upon their view of the doctrine of the 
social contract. Kant, actuated by a spirit of protest 
against the paternal interference of the Continental 
governments of his day, and their intrusion into the 
private life of the citizen, bases his views of govern- 
mental functions on the idea of liberty, and assigns to 
the state "the hindering of the hindering of liberty" 
as its proper policy.^ But among German writers Wil- 
helm von Humboldt, in his " Sphere and Duties of Gov- 
ernment," offers the most complete expression of the 
thoroughgoing political individualism characteristic of 
this period. Taking as his starting-point the " individ- 
ual man and the highest ends of his existence," Hum- 
boldt finds the paramount consideration to be that of 
individual variety and self-development. On this the 

1 An excellent critique of the individualism of the eighteenth cen- 
tury, and its transmission to the nineteenth, is found in Michel, Vldie 
de V Etat (introduction and bk. iii). 

2 See above, bk. i, chap. v. 



INDIVIDUALISM 361 

active interference of government can have none but 
a detrimental effect. For this reason " the state is to 
abstain from all solicitude for positive welfare, and 
not to proceed a step further than is necessary for 
mutual security and protection from foreign enemies." 
Even such examples of interference as national educa- 
tion and state relief of the poor are to be condemned. 
This political theory of non-interference received a 
decided stimulus from its false analogy with the doc- 
trine of popular sovereignty. It was but natural that 
at the beginning of modern democratic government 
the idea of the right of the nation to govern itself 
should be confounded with the somewhat similar claim 
of the individual to be left alone to manage his own 
affairs. Political freedom and non-interference seemed 
synonymous terms. In America the idea of individual 
rights was dominant during the formative period of 
the republic. The original situation of the colonists, 
compelled to wring their sustenance from a reluctant 
wilderness, the discredit of government in general by 
the land fees, quit rents, and tea taxes of the royal 
regime, inspired the Americans with an intense belief 
in self-reliance and individual rights. AVe find it as 
the central feature of the political philosophy of Thomas 
Jefferson, and the writers of the period,^ and it has per- 
sisted until to-day in the opinions held by a large 
section of the people of the United States. 

The individualistic theory of governmental non- 
interference resting on a doctrine of individual rights 
has an attractive and undoubtedly plausible appear- 
ance. Its weak point lies in the fact that on closer 
^ See C. E. Merriam, History of American Political Theories. 



362 THE PROVINCE OF GOVERNMENT 

examination it is seen to contain inconsistencies of a 
serious character. To carry it out fully and absolutely 
would involve the adoption of an attitude at variance 
with the dictates of common sense, and one which no 
government has ever found it practical to completely 
accept. Mill has shown that the limitation of the 
province of government to the prevention of force and 
fraud " excludes some of the most indispensable and 
unanimously recognized of the duties of government." ^ 
Every government recognizes and enforces the right 
of private property, but it can be objected that this, 
in the case at any rate of property in land, looks very 
much like positive interference, since the maintenance 
of the claim of one individual is equivalent to the ex- 
clusion of all others. In the case of the regulation of 
the right of bequest, the fact of interference, though 
universally approved, is still more evident. In matters 
such as the coining of money, and the conduct of the 
postal service, we have instances of governmental action 
in a positive direction of such obvious convenience 
and general utility as entirely to warrant the violation 
of individual liberty involved. In other cases, as has 
been shown in detail by Professor Sidgwick,^ there is 
an obvious breach of public morality in a policy of 
complete abstention ; that a government should leave 
deserted children to starve, and content itself with " not 
interfering " with the destitute poor, is a point of view 
that meets w^ith almost universal condemnation. The 
positive duties of the state in regard to national edu- 

^ John Stuart Mill. Principles of Political Economy, bk. v, chap3. i 
and xi. 

2 Henry Sidgwick, Principles of Political Economy, bk. iii, chap. ii. 



INDIVIDUALISM . 363 

cation are also generally admitted, although it is hard 
to find a defense for such a function of government on 
a purely individualistic plan. 

3. Based on a Theory of Profitability ; the Doc- 
trine of Laissez Faire. The view that social justice 
demands that the individual should be left in possesssion 
of his " natural rights " may therefore be discarded. 
Far more importance has attached to the economic de- 
fense of individualism, the claim that it is more profit- 
able for the welfare of industry and commerce that 
every one should be left to follow his own interest as he 
himself understands it. This is the doctrine that was 
paramount in England during the rise of modern in- 
dustrialism and which was to a large extent reflected 
in America and elsewhere. The cause of the peculiar 
dominance of individualism in the direction of eco- 
nomic policy is to be found partly in the industrial 
circumstances of the time, partly in the effect exercised 
upon public opinion by the writings of the political 
economists. During the i^eriod between 1750 and 
1850, England, and in consequence the industrial 
world, underwent a series of economic changes of such 
fundamental importance as to earn the name of the 
Industrial Revolution.^ The invention of special ma- 
chinery for the textile industries (the spinning jenny, 
the mule, the power loom, the cotton gin), together 
with the application of steam as a motive power, 
changed the system of production from its previously 
restricted and domestic character and established the 

^ The student may with profit consult in this connection Toynbee's 
Industrial Revolution, Cunning-ham's Growth of English Industry and 
Commerce, and Hobson's Evolution of Modern Capitalism. 



364 THE. PROVINCE OF GOVERNMENT 

factory system. The contemporary improvements in 
the smelting of iron ore (coal being used as fuel), 
the improved means of transportation in the shape 
of better roads, canals, and later the introduction o| 
steamboats (1807), the building of railroads (1830) 
enormously increased productive power and stimu- 
lated international exchange of products. At the 
s^me time the existing system of government regu- 
lation of industry (the tolls, duties, prohibitions, 
labor statutes, etc.) became entirely out of harmony 
with the industrial situation and with the need for 
mobility of capital and labor and opportunity to ex- 
ploit foreign commerce. 

The inadequacy and to a great extent the positive 
hindrance of the older system of state interference 
became apparent and contributed directly to the rise 
of modern political economy. Adam Smith in his 
"Wealth of Nations " (1776), followed by Ricardo, Mal- 
thus, Frederic Bastiat and others, elaborated the eco- 
nomic system of individual liberty as the new guide of 
legislative policy. The fundamental argument of their 
system runs as follows : Every man is actuated in his 
economic relations mainly by the pursuit of his own 
interest. If individuals are left free to follow their 
own choice in the use of their capital, the sale of 
their labor, or the renting of their property, the liberty 
of each will be in the general interest of all. For capi- 
tal and labor will by this means be directed to those 
operations in which they are most profitably employed, 
and in which the remuneration for them is in conse- 
quence the highest. A similar reasoning applies to 
prices ; for if articles are fi-eely exchanged, an increased 



INDIVIDUALISM 365 

demand for any commodity will tend to raise the price 
and to call forth an additional supply, until by the 
operation of these balanced forces an equilibrium is 
obtained. International exchange of goods, if left un- 
restricted, will be effected in the quantity and kind 
most profitable to those making the exchange : every 
country will prefer to direct its labor towards the pro- 
duction of those articles for which it has the great- 
est adaptability and will rely on its trade with other 
nations to supply the commodities whose production it 
finds relatively difficult. We have thus a general 
economic harmony in which every individual seeks 
to obtain tlie greatest advantage for himself to the 
general wellbeing of all. In such a state of things 
government interference becomes needless and necessa- 
rily noxious. To fix prices and wages by legislative act, 
to assign a legal rate of interest and prescribe a legal 
schedule of rent, to prohibit importation or hamper the 
movement of labor from trade to trade or from place 
to place, — all this is contrary to a natural law which 
if left to itself will coordinate everything to the best 
advantage. 

The effect of this teaching throughout the world, 
but especially in Great Britain, was momentous. It led 
to the repeal (1813-14) of the long-standing regulation 
of labor under the Elizabethan statute. It occasioned 
the abrogation of the laws against free combination of 
workingmen (1824) and of the laws of settlement re- 
stricting the movement of laborers, the repeal of the 
navigation code (1849) which since the reign of 
Charles II had sought to limit the trade with British 
colonies to the ships of the mother country, and the 



366 THE PROVINCE OF GOVERNMENT 

abolition of the trade monopoly of tlie East India Com- 
pany. It found its greatest triumph in the almost total 
repeal of the protective duties, the abolition of the 
corn laws (1846), and the establishment in the United 
Kingdom of the system of free trade. ^ In America, 
though the absence of positive interference in the past 
prevented the necessity of similar statutes of repeal, 
the same ideas exercised an enormous influence. The 
writings of earlier American economists reflect with 
what General Walker has called a " Chinese fidelity '* 
the ideas of the English school ; and the low-tariff 
movement before the war was based on the doctrine 
of free trade. In a succeeding chapter we shall have 
occasion to refer to the later criticism of natural lib- 
erty. 

4. Based on a Biological Analogy: the Sur- 
vival of the Fittest. The evolutionary basis of the 
individualistic theory of governmental functions has 
not enjoyed the same prominence as the economic doc- 
trine. We see it especially in the political philosophy 
of Herbert Spencer. As we have already noticed in 
connection with the organic theory of society, Spencer 
endeavors to apply the biological theory of evolution 
to the interpretation of social and industrial progress. 
The government is regarded as one of the " organs " of 
society. It should be intrusted only with that function 
for which it is specially adapted ; and with the ad- 
vance of social complexity it must lose in scope what 
it gains in intensity. " A function to each organ, and 
each organ to its own function," says Spencer, " is the 
law of all organization. . . . The lungs cannot digest, the 
^ A. Mongredien, History of the Free Trade Movement. 



INDIVIDUALISM 367 

heart cannot respire, the stomach cannot propel blood. 
, . . Must we not expect that with government also, 
special adaptation to one end implies nonadaptation to 
other ends ? " Spencer, in his earlier writings at any 
rate, was willing to follow his theory to its logical out- 
come, and to erect the dogma of " the survival of the 
fittest" into a moral law. To interfere with its opera- 
tion was to disturb the " natural " order of progress. 
Should the state aid the poor, the sick, and the aged, 
it thereby contributes to the survival of forms which 
have no claim to survive, and whose existence is a det- 
riment to life in general. " It seems hard," he says, 
" that a laborer incapacitated by sickness from com- 
peting with his stronger fellows should have to bear 
the resulting privations. It seems hard that widows 
and orphans should be left to struggle for life or death. 
Nevertheless when regarded not separately, but in 
connection with the interests of universal humanity, 
these harsh fatalities are seen to be full of beneficence." 
The theory thus advanced is interesting as illustrating 
the extreme form which individualism was apt to as- 
sume during the period of its dominance, but hardly 
needs a detailed refutation. Such an argument would 
apply equally well to the suppression of private charity, 
private aid to the sick, and private maintenance of the 
poor as well as to government relief. If the sole test 
of fitness to survive is found in the fact of survival, 
then the prosperous burglar becomes an object of com- 
mendation, and the starving artisan a target of con- 
tempt. If it is assumed that widows will die unless the 
government helps them, and that usurers will grow 
rich unless the government stops them, this seems a 



368 THE PROVINCE OF GOVERNMENT 

very poor reason for saying that widows ougTit to die 
and that usurers ought to grow rich. Even taking the 
evolutionary argument on its own ground, it can be 
urged with justice that as soon as the government does 
" interfere," then its interference becomes one of the 
facts of the situation, one of the operative forces to be 
taken into account. Indeed the attempt to thus apply 
the biological doctrine of evolution to the theory of the 
functions of government involves a distortion of the 
truly scientific point of view. 

5. Conflicting Forces. Even in the first half of the 
nineteenth century, when the individualistic view of gov- 
ernment was dominant in both theory and practice, its 
doctrines were not altogether unopposed. The wonder- 
ful progress made in productive industry by the fac- 
tory system operating under a regime of natural liberty 
seemed the strongest possible argument in its favor. As 
against this the appalling distress of the working classes 
during the same period plainly called for a more active 
policy on the part of the state than mere non-interven- 
tion. The factory system under the play of free contract 
seemed inevitably to lead to oppressive hours of labor, un- 
wholesome and brutalizing conditions of work, and the 
employment of children of immature age as a substi- 
tute for adult labor.^ The degradation and insufficient 
remuneration of the workers as a consequence of their 
enjoyment of " natural liberty " called forth a strong 
current of opinion in opposition to the policy of non- 
interference. Thomas Carlyle in his " Past and Present " 

^ An account of the miseries occasioned by the factory system 
may be found in Spencer Walpole'a History of England, vol. iii, chap. 



INDIVIDUALISM 369 

(1843) and " Latter Day Pamphlets " (1856) ^ denounced 
the "dismal science" of the economists and ridiculed the 
doctrine of laissez /aire. The practical effect of this 
humanitarian movement is seen in the leo-islative reo^u- 
lation of factory labor in Great Britain by acts of Par- 
liament of 1833, 1844, 1847, 1850, and later statutes. 
These measures which limit the hours of employment 
for women and children are flatly at variance with the 
individualistic principle. They have however been sub- 
sequently imitated in the legislation of the great indus- 
trial states, including most of the manufacturing states 
of the American Union. The further disintegration of 
the principle of non-interference will be traced in the 
third chapter. From what has been said, however, it 
may safely be concluded that pure individualism in the 
conduct of government is impossible. Its adoption, in 
complete form, runs counter to the most instinctive 
impulses of humanity and would neglect governmental 
duties of the most evident character. As a matter of 
political justice it rests on a mechanical attempt to 
completely divorce individual and social rights. On an 
economic basis it overlooks the plain advantages of 
cooperation and regulated effort. As a scientific law 
it will not stand examination. 

READINGS SUGGESTED 
Mill, J. S., Principles of Political Economy, bk. v, chap. xi. 
Ritchie, D. G., Studies in Political and Social Ethics (1902), 
chap. iii. 

1 " Let us hope that the leave-alone principle has g'ot its apotheo- 
sis. . . . Respectable Professors of the dismal science, your small ' Law 
of God ' is hung up along with the multiplication table itself . . . the 
length of your tether is pretty well run." Latter Day Pamphlets, No. L 



370 THE PROVINCE OF GOVERNIVIENT 

M'Kechnie, W. S., The State and the Individual (1896), part ii, 
chaps, xiv, xv, xvi, xvii. 

FURTHER AUTHORITIES 

Montague, F. C, Limits of Individual Liberty (1885). 

Donisthorpe, W., Individualism (1894). 

Kelly, E., Government, or Human Evolution (1901). 

Michel, H., L'ld^e de I'Etat (1895). 

Sidgwick, H., Elements of Politics (2d edition, 1897). 

Von Humboldt, W., Sphere and Duties of Government (1791). 

Pollock, Sir F., History of the Science of Politics (1900). 

Godwin, W., Political Justice (1798). 

Bluntschli, J. K., Geschichte der Neueren Staatswissenschaft. 
(3d edition, 1881). 

Blanqui, J. A., History of Political Economy in Europe (Ameri- 
can translation, 1880). 

Cunningham, W., Growth of English Industry and Commerce 
(1903), vols, ii and iii. 

Spencer, H., The Man versus the State (1884). 



CHAPTER II 

SOCIALISM 

1. The Socialistic Theory : its Destructive Criticism. — 2. The Con- 
structive Programme of Socialism. — 3. The German Social Demo- 
crats. — 4. Socialism in Eng-land and America. 

1. The Socialistic Theory: its Destructive 
Criticism. Entirely opposed to the individualistic 
conception of government are the doctrines known as 
socialism, collectivism, communism, and which, subject 
to later distinction, may be spoken of together as the 
socialistic theory of the state. No socialistic state has 
actually existed on any except a small and experimental 
scale. Socialism is therefore mainly an ideal rather 
than an actuality. But the doctrines it embodies have 
appealed so strongly to so many minds, have exercised 
such an important influence on actual legislation and 
practical politics, and contain in spite of their falla- 
cious nature so much that is of use and inspiration, as 
to merit a special treatment. 

Socialistic theories present both a destructive and a 
constructive aspect. They offer in the first place a criti- 
cism of the existing industrial system (whose basis is 
individualistic), with a view to show its inherent un- 
soundness and its inevitable collapse. In the second 
place they propose to substitute for the present state 
a cooperative commonwealth to be founded on associ- 
ated effort and joint control. The critical part of the 
socialistic doctrine is intended to show that the indi- 



372 THE PROVINCE OF GOVERNMENT 

vidualistic system of industry is wasteful and ineffective 
from an economic point of view, and inequitable in 
that the remuneration which falls to the different classes 
of workers is not according to their relative deserts. 
The more celebrated writers of the school, as for in- 
stance the great German socialist Karl Marx in his 
" Capital," which has been called the gospel of socialism, 
criticise the existing state from a point of view elabo- 
rately historical. Mark alleges that the system of indi- 
vidual private property on which it rests is the outcome 
of original aggression of the strong against the weak, 
representing an appropriation of the means of exist- 
ence by the stronger class, and their consequent ex- 
ploitation of the mass of workmen, who remain in a 
state of dependence spoken of as wage slavery. The 
progressive improvement of the means of production 
renders the workmen more and more dependent on 
those who employ them. The appropriation of the land 
by private owners (a process practically complete in 
older countries) renders it impossible for any individ- 
ual to apply his labor directly to the natural resources 
of the earth. The increasing use of machiner^^, although 
vastly more efficient than the hand labor which it has 
replaced, makes all productive operations more and 
more dependent on the possession of capital, on the 
ability to purchase machines, premises, etc., and to 
forego the prospect of immediate reward for the sake 
of future profit. In such a condition of things the 
isolated laborer has nothing whereon to subsist except 
his labor power, which he must sell as best he can to 
the highest bidder. In the nature of things he cannot 
receive less for it than what will enable him to barely 



SOCIALISM 373 

exist, but anything over and above tbis will depend on 
the bargain be is able to make witb bis employer. 
Now tbis bargain, altbougb nominally effected under 
tbe rule of free contract, is in reality a forced one. 
The workman must sell bis labor or die of starvation. 
But since tbe increase of population, as Maltbus and 
otbers bave sbown, is continuous until some point wbere 
it is actually cbecked by lack of means of subsistence, 
tbe labor market will always be so crowded witb labor- 
ers as to bring down tbe level of wages to tbat wbich 
practically amounts to tbe necessaries of life. Sbould 
wages rise above tbis, a responsive upward movement 
of population must bring tbem down again. Sucb is 
tbe famous " Iron Law of Wages " formulated by 
Lassalle on tbe basis of tbe Ricardian economics. Tbe 
other side of tbe industrial bargain is represented by 
what the employer receives from the laborer. This 
consists each day of a certain amount of labor power, 
which results in the fabrication of a certain number of 
useful commodities produced by the application of the 
day's labor. From the nature of the bargain it does 
not follow tbat the commodities thus produced by the 
workman's labor need be exactly equivalent to the com- 
modities given to him through the medium of his wages 
by the employer. Indeed, the socialistic writers assure 
us the two are by no means equal. The workman pro- 
duces in the day more than he consumes (for other- 
wise the employer would have no motive in undertaking 
production), and the surplus thus created falls to the 
lot of his fortunate employer. The laborer who sells 
his labor under compulsion is compelled to submit to 
this fraudulent system. Sucb is tbe doctrine of sur- 



374 THE PROVINCE OF GOVERNMENT 

plus value, which is particularly associated with the 
name of Karl Marx, and which is the foundation of 
the critical theory of socialism. The point in which it 
lies open to attack is that it attributes to labor the 
whole of the productive result, and does not allot a 
share to the machine which was used in cooperation 
and which is the property of the capitalist. 

It is impossible here to enter into the economic dis- 
cussion to which this question gives occasion. It is only 
intended to show on what grounds the socialistic con- 
tention accuses the present system of being essentially 
inequitable. Marx and the writers who have followed 
his lead are not content with alleging the present un- 
fairness of the method of free contract and free com- 
petition. They claim that with the continued applicatioi: 
of machinery and improvement of production, the con- 
tinued appropriation of natural resources and constant 
growth of population, the inequity of the system will 
be emphasized, the gulf between the capitalists and 
the laborers, the rich and the poor will be further and 
further increased. Sooner or later, they maintain, the 
forces thus at work will precipitate a vast social catas- 
trophe which can only be avoided by altering the in- 
dustrial basis of our social system, and substituting 
associated effort for the economic anarchy of free com- 
petition. Their theory thus assumes the aspect of a 
social prophecy. 

On more valid grounds the socialists draw attention 
to the wastefulness of the individualistic method of pro- 
duction and distribution. A vast amount of work is 
performed under it that has no social utility, a great 
deal of work is duplicated and even done several times 



SOCIALISM 375 

over with no general advantage. The lahor wasted in 
competitive advertising, and efforts of a similar char- 
acter intended merely to divert business from one per- 
son to another, is the most conspicuous instance of 
economic loss of the fii'st class. Instances of work that 
is needlessly multiplied are seen in the case of com- 
peting railroads running trains over parallel lines, and 
in retail stores existing in considerable number where 
one general distributino- establishment could do the 
work. Perhaps the simplest and best illustration of the 
point in question is seen in the contrast between the 
delivery of letters at consecutive houses and in neigh- 
boring streets by a postman (an official under collec- 
tive management) and the waste of time and labor 
involved by the spasmodic delivery of milk and gro- 
ceries at various houses throughout an exteusive dis- 
trict by the employees under individual management. 
It is in the economic saving thus effected that the 
amalgamation of industry by large corporations proves 
economically superior to production and distribution 
by small concerns. The large industrial companies 
and departmental stores of the present are standing 
proof of the fact. These the socialists regard as indi- 
cating the necessary passing of the older system of 
individualism, the large corporations representing a 
transition stage towards the general industrial man- 
agement by the state. 

2. The Constructive Programme of Socialism. 
From what has been said it will be easily seen that the 
critical or destructive side of socialistic theory contains 
a great deal that is true and extremely useful in indi- 
cating the proper direction of measures of social reform. 



376 THE PROVINCE OF GOVERNMENT 

The other side of socialism, its constructive programme 
for a cooperative commonwealth, is much weaker and 
cannot be worked out in detail without meeting with 
hostile criticism from socialists themselves. In general 
terms the programme of socialism is to substitute gov- 
ernment management for private management, to put 
all productive industry under state administration, thus 
making the state the sole employer, and putting all 
the workers in the employ of the state. On this system 
the functions of government would extend to the whole 
domain of economic operations ; it would manage all 
the railroads, the factories, the mines, and the farms. 
In place of competing retail stores, government distrib- 
uting houses would be established for delivering to each 
citizen his share of the national production. Individ- 
uals would still have a property right to the things they 
actually intended to use, — houses, food, clothes, etc., — 
but all the means of production would be nationalized. 
The inherent impracticability of such a system be- 
comes evident when one turns from the general scheme 
of production to the question of distribution, — the 
method according to which the wages of the workers 
under the socialist state are to be managed. On this 
point there is a great variety of opinion. The most ex- 
treme view is found in those writers who recommend that 
everything produced should be common property, all 
persons taking from the general stock according to their 
needs. La mise au tas^ la prise au tas, ran the for. 
mula adopted by Proudhon, the French anarchistic 
writer. Such a system would of course leave no such 
thing as individual wages, the remuneration of each 
laborer being according to his needs, not according to 



SOCIALISM 377 

his efficiency. Somewhat similar to this is the sugges- 
tion for a general equality of wages, all persons being 
compelled to work for an equal number of hours (or 
a number of hours equalized according to the rela- 
tive attractiveness or repulsiveness of the trade) and 
all receiving the same remuneration. This, it will be 
remembered, is the solution of the wages problem offered 
by Edward Bellamy in his " Looking Backward," a pre- 
sentation of the socialist state under the form of a 
romance, which attracted at the time of its publication 
(1888) a phenomenal attention. To all except the 
most sanguine visionaries any socialistic scheme in- 
volving equality of wages is totally impracticable. It is 
evident that under such an arrangement the individual 
stimulus to work would be gone and the efficiency of 
production hopelessly impaired by idleness. Bellamy 
and others attempt to argue that under the improved 
conditions brought by socialism, the elevation of the 
general moral tone w^ould severely discountenance any 
such shirking of work, and that with the shortened hours 
of labor possible under cooperative work there would be 
no aversion to labor on the part of the individual. Such 
an argument is altogether of an idealistic character, 
and contains the most monstrous assumptions of a sud- 
den and mechanical renovation of human nature, so 
sweeping as to beg the whole question of social reform. 
The argument is also in contradiction to the method 
(adopted by Bellamy) of lengthening or shortening the 
hours of labor in any trade in order to attract or repel 
workers according to the needs of any particular moment. 
This plan itself rests on the assumption of an aversion 
to work. 



378 THE PROVINCE OF GOVERNMENT 

We come finally to the scheme of industrial organiz- 
ation that may be described as socialism proper, in op- 
position to communism and collectivism. In this case 
wages are to be awarded to each laborer according to his 
efficiency. The plan supposes a hierarchy of officials 
(on the elective principle) who control the productive 
process, drafting the workers from trade to trade as 
maybe needed, and paying salaries, making promotions, 
etc., according to the industrial efficiency of the workers. 
The pay of a good workman would be high, of an inef- 
ficient or idle workman low. The scheme would be 
almost perfect, if one could assume the official per- 
sons who assign places, salaries, and promotions to be 
omniscient and impeccable. But the possibilities of 
corruption, the play of interested motives, intrigue, 
personal spite, and unfairness of all kinds would be so 
appalling under present conditions of public morality 
as to altogether remove such suggestions from the 
domain of the practicable. If all industry were forcibly 
appropriated by the government and private business 
prohibited, the individual who fell under the odium of 
the " bosses " and " cliques " that might very possibly 
control such a government, would feel himself to be 
under a despotism from which the organization offered 
no escape. 

3. The German Social Democrats. Socialism, 
however, has more than a merely theoretical aspect. 
On the continent of Europe it has made itself a force in 
practical politics of the highest importance, and social- 
ist political parties have of late assumed some impor- 
tance in England and the United States. But it is in 
Germany especially that the socialist propaganda has 



SOCIALISM 379 

met with success, and has exercised a powerful influence 
on the legislative policy of the government. The evo- 
lution of socialism in Germany is not only interesting 
of itself, but is singularly instructive in the light it 
throws upon the probable future of socialist political 
parties, and the extent to which they are likely to suc- 
ceed in modifvino; the attitude of existino: o'overnments. 
It arose, as also in France, in the earlier part of the nine- 
teenth century, assuming at first an altogether ideal and 
Utopian form.^ The earlier socialists, or communists 
as they were at first called, greatly underestimated the 
enormous difficulties that stand in the path of social 
reform. Attributing all existing evils to the prevalence 
of the capitalistic system, they presumed that its imme- 
diate abolition in favor of state control would effect an 
almost immediate regeneration of mankind. The origi- 
nal programme of socialism, when it arrived at the stage 
of having a political programme, consisted in the un- 
compromising destruction of capitalistic industry. This 
was the attitude of the socialist wing of the revolution- 
ists that for the time being overthrew monarchical gov- 
ernment in France in 1848, and threatened its existence 
in the German convulsions of the same year. After the 
collapse of that great movement the German socialists 
fell into opposing groups, — some of them still aiming 
at a general universal revolution, and attempting to or- 
ganize on a cosmopolitan basis, others recognizing the 
})resent national state as their starting-point, and de- 
sirous of gaining their ends by constitutional reform. 

* Of the initial period of modem socialism in Germany. Weitling'3 
Die Welt wie sie ist und scin soil (18^58) and in France the writings of 
St. Simon and Fourier may he cited as illustrative. 



380 THE, PROVINCE OF GOVERNMENT 

By the latter plan socialism, instead of fighting itself 
into power, would vote itself into power. The greatest 
influence during this period was exercised by Ferdi- 
nand Lassalle, who organized a German Workingmen's 
Association, and advanced as an immediate programme 
the use of state credit for the foundation of working- 
men's productive associations, which should act as the 
beginning of a socialist state. The secession of the 
revolutionary anarchists, the collapse of the interna- 
tional aspect of the movement,^ aided the growing 
tendency of German socialism towards a national con- 
stitutional form whose immediate aim should be the 
attainment of practical measures, rather than the com- 
plete realization of the ideal state. At a congress at 
Gotha in 1875, a general union of the socialist party 
was effected on a basis of compromise. In the pro- 
gramme there adopted the "abolition of the system of 
wage labor " was indicated as the ideal of socialism, but 
certain immediate measures were proposed " in order to 
prepare the way for the solution of the social question." 
In the period following (1878-1890) the party un- 
derwent a severe persecution at the hands of the Ger- 
man imperial government, which did not, however, 
drive it into revolutionary measures. At a congress 
held at Erfurt (1891) a revised platform was adopted, 
which became the official programme of the German 
social democratic party. It demands universal, equal, 
and direct suffrage by ballot (extending the franchise 

1 Karl Marx in 1864, while a refugee in London, founded the Inter- 
national Working-men's Association, which aimed at social revolution 
without the help of existing- g-overnments ; the movement collapsed 
after the Franco-Prussian War. 



SOCIALISM 381 

to women), proportional representation, direct legisla- 
tion, substitution of a universal militia for a standing 
army, freedom of the press and of meeting, free justice, 
a graduated income tax, improved factory legislation, 
statutory limitations of the hours of labor. With these 
immediate demands are coupled a general denunciation 
of the evils of capitalistic industry. But it is asserted 
that the " struggle of the working classes against capi- 
talistic exploitation must of necessity be a political 
struggle," ^ and it will be seen that the present de- 
mands of the party include nothing that is not asked 
by various radical groups in Anglo-Saxon countries, 
except perhaps the item of a legal labor day. On this 
basis the progress of the Social Democrats in point of 
numbers has been extremely rapid. At the foundation 
of the German Empire they elected only two members 
to the Reichstag ; in 1893 they elected forty-four mem- 
bers, representing 1,876,738 votes, and in the election 
of 1912 succeeded in returning one hundred and ten 
members, representing 4,238,919 votes. On the other 
hand it is generally conceded that the socialist party (in- 
cluding therein those who vote for socialist candidates) 
is not entirely made up of socialists. It has become to a 
large extent the party of discontent and of standing 
opposition to the imperial government, and is by no 
means to be looked upon as entirely made up of persons 
believing in the practicability of a cooperative state. 

In all the Continental countries one of the vexed 
questions of present socialism is the extent to which 
the earlier doctrines of the socialistic theory are to be 

1 A translation of the text of the Erfurt programme may be found 
in Ely's tiocialism and Social Reform, appendix i. 



382 THE PROVINCE OF GOVERNMENT 

maintained. Some of the socialists tenaciously adhere 
to the original tenets of Karl Marx, and persist in be- 
lieving in the imminence of the social cataclysm. This, 
however, in view of the evident improvement in the lot 
of the working classes during the nineteenth century, 
during which the actual wages of skilled labor have 
been about doubled, is an expectation that seems be- 
lied. A great many socialists believe in the progressive 
alteration of present conditions with a view to immediate 
social amelioration to the extent actually practicable. 
These "revisionists," as they are called, were voted 
down at the recent international congresses of social- 
ists, as at Amsterdam (1904), and resolutions adopted 
reaffirming the inveterate hostility of the socialists to 
the system of capitalistic production. But in spite of 
this it may with authority be affirmed that the greater 
number of socialists now favor the amelioration of pre- 
sent conditions rather than their complete overthrow. 
The socialists, though extremely numerous in France and 
Italy, have nowhere else as much cohesion and unity 
of operation as in Germany. In France in particular 
they are divided into opposing factions. Some of them, 
under the name of " coUectivists," are of the Marxian 
type, favoring a complete economic control exercised 
by a centralized government ; others advocate the 
adoption of a socialistic programme by the develop- 
ment of municipal control ; others again, the " possi- 
bilists," are inclined to accept any measures of ameli- 
oration that can be obtained and to cooperate with any 
existing governments that will meet their views. 

4. Socialism in England and America. Vari- 
ous socialistic associations have been formed in Eng- 



SOCIALISM 383 

land, — the Social Democratic Federation (1881), the 
Socialist League (1884), now extinct, and the Fabian 
Society. The latter has contained among its members 
many persons of marked talent, — the two Webbs, ^ Mrs. 
Annie Besant, and others, — and the collection of pa- 
pers published by it under the title of " Fabian Essays 
in Socialism" has had an extensive sale. The pro- 
gramme of the society consists in the gradual introduc- 
tion of socialism, recognizing the need of a transitional 
stage in passing from capitalistic industr}- to collective 
management. In the United States there have been 
numerous examples of practical attempts at the reali- 
zation of collective management in the foundation of 
various communities in which the principle of associated 
labor and common ownership was adopted.^ Of these 
the Rappites of New Harmony (later of Economy) and 
the communists of Zoar, Amana, and Oneida are famil- 
iar examples. These experiments have always proved 
failures, except where the main motive was religious 
and not economic, and where the community of pro- 
perty was only incidental to aspirations of a higher 
character. Of late years socialism has appeared in 
the United States in the form of political parties 
which are developing a considerable voting power. 
The Socialist Labor party and the Social Democratic 
party are the most important. In the presidential elec- 
tions of 1912 some 919,000 votes were given to social- 
ist candidates. But in the case of both these parties, 

1 Sidney and Beatrice Webb, well known as joint authors of His- 
tory of Traflc-Unionism, etc. 

^ Consult in this connection Charles Nordhoff, The Communistic So' 
cieties of the United States. 



384 THE PROVINCE OF GOVERNMENT 

though they preface their platforms with general state- 
ments in favor of the nationalization of production, 
special stress is laid on the immediate demands for state 
railroads, municipal control of lighting plants and street 
cars, a graduated income tax, etc* They thus illustrate 
in their practical programme a very close similarity 
with radical political parties whose basis is not social- 
istic. The present demands of socialist parties both in 
America and in Europe are very closely allied to those 
advanced by the Populists, the French Eadicals, and 
the British Independent Labor party. The funda- 
mental basis of radicalism is individualistic and hence 
represents in theory the opposing extreme from the 
socialistic conception of the state. But the progressive 
evolution of modern socialism is carrying it further and 
further from its original ideal. The latter many social- 
ists admit to be Utopian and unattainable, and many 
persons not socialists would concede that the theoreti- 
cal ideal of a cooperative commonwealth may exercise 
a formative influence on the direction of actual legis- 
lation. The aims of the socialists in connection with 
municipal government we shall discuss in the next 
chapter. 

READINGS SUGGESTED 
Kirkup, T., History of Socialism (1892), chaps, i, vii, xii. 
Ely, R., Socialism and Social Reform, part i (1894). 
Schaffle, A., Quintessence of Socialism (translation of Sth Ger- 
man edition, 1889). 

FURTHER AUTHORITIES 
Bliss, W. D. P., Handbook of Socialism. 
Rae, J., Contemporary Socialism (2d edition, 1891). 
Ely, R., French and German Socialism (1883). 



SOCIALISM 385 

Bellamy, E., Looking Backward (1890). 

Marx, K., Capital (1867). 

Webb, S. and B., History of Trade-Unionism. 

Nordhoff, C, Communistic Societies of the United States (1878). 

Pohlmann, B,., Geschichte des antiken Kommunismus uud Sozi- 

alismus (1893). 
Schaffle, A., Impossibility of Social Democracy. (Authorized 

English edition, 1892). 
Zenker, E. V., Anarchism (1897). 



CHAPTER III 

THE MODERN STATE 

1. The New Environment. — 2. Theory of Protection to Industry. — 3. 
Modern Protective Tariffs. — 4. Interference with Competitive Prices; 
Trust and Railroad Legislation. — 5. Government Interference on 
Behalf of the Working- Class ; Factory Laws, State Insurance, and 
Pensions. — 6. Municipal Control. 

1. The New Environment. We shall now consider 
in conclusion the actual functions exercised by modern 
governments and the existing state of opinion in refer- 
ence to the economic duties of the state. The practical 
operation of all modern civilized governments remains, 
in a certain sense, on an individualistic basis. By this is 
meant that there is no state in which the principle of 
common propert}^ in the means of production, or of 
equality of wages, or of universal employment by the 
government, is adopted. Each individual is still left 
to earn his own living by his own efforts, and the 
amount of wages remains as a matter of free contract 
between employers and employed. But subject to this 
general reservation, it can easily be shown that the 
practice of modern governments is further than ever 
removed from complete individualism, and that the 
tendency towards state interference with industry is 
everywhere on the increase. We have but to consider 
the public policy of our time in reference to the regu- 
lation of railroads, of monopolies and tariffs, to realize 
that the former reliance upon the principle of unre- 



THE MODERN STATE 387 

stricted competition and individual self-interest has 
been completely lost. This obvious change in public 
policy has been accompanied by an equally evident 
change in public opinion. The economists and political 
philosophers of the present time are prepared to defend 
a degree of state interference quite at variance with 
the doctrines of their predecessors. The reason for this 
remarkable alteration both in theory and practice is 
found in the altered circumstances of our industrial 
environment. We have seen in a previous chapter 
that the rapid expansion of industry under the stimu- 
lus of the new mechanical processes of the industrial 
revolution seems to demand its liberation from all 
forms of governmental restraint, and that the conse- 
quent removal of the standing impediments to the free 
movement of capital and labor was accompanied, at any 
rate as far as the total volume of production was con- 
cerned, with marked success. But it has been seen also 
that in reference to the welfare of the laboring class 
the system of free competition, particularly in regard 
to the work of women and children, was open to serious 
objection. The further development of modern indus- 
try has emphasized many other disadvantages attend- 
ant upon unrestricted competition. The more import- 
ant of these may be briefly discussed in theoretical 
form, after which we shall proceed to the treatment of 
the actual legislative policy adopted under the circum- 
tances. 

The theory of government functions laid down by 
Smith, Ricardo, and the classical economists was 
essentially a cosmopolitan theory. It was intended to 
show that if wages, prices, and trade were left to the 



388 THE PROVINCE OF GOVERNMENT 

free play of individual bargaining, the self-interest of 
each would promote the general interest of all. Each 
individual would be enabled to apply his labor and his 
capital to the particular branch of industry in which 
he might expect the highest remuneration. In the same 
way each nation would be enabled to concentrate its 
production in the directions for which it had the great- 
est natural advantages, an unrestricted trade with its 
fellow nations supplying the commodities not produced 
at home. As applied to the conditions prevalent in Eng- 
land in Eicardo's day, the theory of international rela- 
tions is generally admitted to have been correct. There 
could be no doubt as to England's paramount advan- 
tages at that time in nearly all lines of manufacturing 
industry. But the attempt to apply the free-trade 
theory to other nations and to later times has by no 
means met with a general acceptance. In the first place 
it is objected that the acceptance of the policy of free 
trade militates against national self-sufficiency and 
independence. In strict accord with the Kicardian 
doctrine it will follow that if a nation has especial 
advantages for agriculture and relatively poor facili- 
ties for manufacture it will, apart from government 
interference with the " natural " course of things, rely 
upon its neighbors for manufactured articles, and de- 
vote its energies mainly to agriculture. Conversely a 
nation with special facilities for manufacture, but poor 
in agricultural resources, will be led to leave its land 
untilled and to obtain its food-supply by exchanging 
its manufactured articles for agricultural products. It 
is clear that in these cases the welfare of each nation 
is absolutely dependent on its being able to carry on 



THE MODERN STATE 389 

an uninterrupted trade for the supply of its particular 
needs. Should such intercourse be interrupted by war, 
either between itself and the nation it trades with or 
between the latter and an outside power, its economic 
existence is at stake. The economic gain afforded by 
its trade in time of peace is thus offset by its economic 
feebleness in time of war. It is to be especially ob- 
served that it is not only a war of its own that it must 
apprehend, but a war undertaken by an outside nation 
on which it is in some degree economically dependent. 
On this ground it is argued that state interference in 
the shape of protection to manufactures (or to agricul- 
ture) is justified in so far as may be needed for estab- 
lishing a proper quantity of economic independence. 
Even Adam Smith in his approval of the navigation 
acts^ admits the validity of considerations of a similar 
character, and the argument is generally admitted by 
present economists to be of weight. There is a con- 
siderable divergence of opinion as to the extent to 
which economic independence should be attempted. It 
is, however, universally admitted that for the manufac- 
ture of the munitions of war no state should permit 
itself to be dependent on the outside world. 

2. Theory of Protection to Industry. The fore- 
going is only one of the many grounds on which state 
interference in the form of protective duties has been 
advocated. More familiar, especially in America, is the 
line of reasoning known as the " infant industry" argu- 
ment. It is claimed that the resources and circum- 
stances of a country may be such that while the initial 
expense of setting a manufacturing system on foot in 

^ Wealth of Nations, bk. iv. 



390 THE PROVINCE OF GOVERNMENT 

the face of foreign competition offers insuperable diffi- 
culties for the industrial producer, yet such a system 
once properly established would be of a sufficiently 
profitable character to compete on equal terms with the 
imports of foreign manufactures. In this case, it is urged, 
the government should impose a temporary duty which 
may make it possible for manufactures to be estab- 
lished, and which may later on be removed. The tempo- 
rary help thus afforded by state interference will enable 
the community to advance to a higher stage of indus- 
trialism, and better to exploit the natural resources 
of its territory. This argument has met with especial 
support from American economists. The weak point in 
connection with the infant-industry argument is that in 
countries where duties of this kind have been adopted, 
the industries in question have never outgrown their 
infancy, as far as the protective tariff is concerned. In 
practice the duties have not only not been removed but 
have been increased. 

A further ground of argument in favor of protec- 
tive interference arises out of the cosmopolitan charac- 
ter of the free-trade doctrine. Assuming a complete in- 
ternational regime of free trade, the system might tend 
towards the denudation and impoverishment of the less 
favored nations in favor of those possessing the great- 
est resources and offering the best conditions for man- 
ufacture. The Ricardian theory presupposes that each 
nation will occupy itself with the pursuits for which its 
circumstances are best suited. It is admitted^ that one 
nation may be worse suited in every respect than an- 

1 See John Stuart Mill, Principles of Political Economy, bk. iii, chaps, 
xvii, xviii. 



THE MODERN STATE 391 

other and yet continue to trade with it, because the 
people of the most favored nation will prefer to devote 
themselves to the occupation in which their advantage 
is greatest. Thus let us suppose that Portugal can pro- 
duce both wine and corn with less labor than Morocco ; 
and let it also be supposed that in the production of 
corn the advantage is but slight, whereas in the case of 
wine the advantage is enormous ; the people of Portu- 
gal will still prefer to get their corn from Morocco, al- 
though produced there at greater pains than in Portu- 
gal, because the quantity of wine they exchange for it 
is produced at still less cost. On this ground the classi- 
cal economists undertook to show that two nations 
might trade with mutual advantage even where the re- 
sources of the one were superior in every respect to 
those of the other. Such an argument however takes it 
for granted that the capital and labor of each country 
will remain within its own borders, and not emigrate to 
the more favored territory. Why should it not be sup- 
posed that with free intercourse and open markets, the 
capital, and what is far more important, the laborers of 
less favored communities would emigrate to places bet- 
ter suited for manufacture ? It will be noted that this 
supposed denudation of poorer countries contains no- 
thing at variance with tlie free-trade theory itself. The 
emigration of persons and capital under these circum- 
stances would doubtless increase the gross total of the 
world's production, and would add something to the 
general productive efficiency of mankind. But it would 
assuredly not increase the gross total of the productive- 
ness of the country out of which they emigrated. The 
question tlien is, whether the adoption of protective 



392 THE PROVINCE OF GOVERNMENT 

duties in aid of borne manufacture can prevent the de- 
sertion of poorer for richer countries. It may be argued 
that, even after the duties are imposed, the individual 
capitalist or laborer will still find it more profitable to 
use his capital and labor in the more favored country, 
and that the tendency to emigration of both of these 
is independent of protective interference. There are, 
however, a great many people in every country whose 
remaining there is not altogether a matter governed by 
economic motives ; some will remain from sentimental 
reasons of attachment and patriotism, others because 
their material fortunes are already amply sufficient. 
Under a protective system the manufactured commod- 
ities consumed by these persons must needs be made 
at home and necessitate the continuing within the state 
of a sufficient manufacturing population for the pur- 
pose. Such manufacture will, under these premises, be 
conducted at an economic loss : the persons of means 
thus residing in the country will have to pay more for 
what they consume than if content to import it from 
abroad and to let the manufacturing population depart. 
But the upshot will be that a larger number of citizens 
remain within the state than would have remained 
without the state interference in the form of protective 
duties. It is plain, of course, that the applicability of 
such an argument depends on the particular circum- 
stances of any country at any time. The situation of 
Great Britain at the present time naturally suggests it- 
self for examination in this connection. It may conceiv- 
ably be the case that the facilities both for agriculture 
and for manufacture are now inferior in Great Britain 
to those of the United States. The progressive appli- 



THE MODERN STATE 393 

cation of water power and electricity as motive forces 
may further emphasize this advantage. Under such 
circumstances according to the Ricardian doctrine the 
laboring people of England ought, each consulting his 
own advantage, to come to live in the United States. 
There would remain in England the persons of means, 
who would invest their capital in the manufacturing 
industries of America, and draw from that continent 
the various commodities of their consumption. The 
case is purely hypothetical and may be perfectly at vari- 
ance with present facts. But it seems to show that, in 
pure theory, the system of free trade is not of necessity 
identical with national greatness. To grant this and to 
contend that it is always consistent with the general 
welfare of the world, even where fatal to the welfare of 
a particular nation as such, would be thought by many 
a quite insufficient argument. 

3. Modern Protective Tariffs. Acting on the 
general considerations thus stated, almost all of the 
modern industrial states have seen fit to adopt a system 
of protective duties for the promotion of domestic man- 
ufacture. Such legislation in the United States was 
indeed adopted in a mild form at the very opening 
of the history of the present Constitution.^ During the 
first half of the nineteenth century, the rival theories 
of free trade and protection struggled for mastery. The 
high tariff of 1828, the "tariff of abominations," was 
followed by the greatly reduced tariff of 1846, a meas- 
ure partly due to the influence of the free-trade cam- 
paign in England, and by the reciprocity treaty with 

^ See Schouler, History of the United States, vol. i ; Taussig, Tariff 
History of the United States. 



394 THE PROVINCE OF GOVERNMENT 

Canada in 1854. But since the Civil War the system of 
protection to national industries has been strengthened, 
and extended to practically the whole range of indus- 
try. The Dingley tariff of 1897, while admitting free 
of duties a large number of raw materials for use in 
manufacture, imposed on manufactured articles duties 
amounting in some cases to more than fifty per cent. 
The Dominion of Canada, though granting a special 
rebate of one third of the duty to imports from Great 
Britain, is now on a high-tariff basis, the policy of pro- 
tection having been explicitly adopted by the Conserva- 
tive party in 1878, and transmitted to their opponents 
on their accession to power in 1896. The German Em- 
pire, since the tariff of 1879, has also adopted the policy 
of protection, the recent tariff of 1902 having further 
raised the existing duties, especially those on agricul- 
tural products.^ France, Italy, and the other Continen- 
tal countries are also under a system of tariff protection. 
Of the manufacturing countries of the world. Great 
Britain alone remains upon a free-trade basis, while 
even there the future retention of such a system has 
recently become a subject of acute controversy. 

4. Interference with Competitive Prices ; Trust 
and Railroad Legislation. Interference with the free- 
dom of importation is only one instance of the present 
tendency towards legislation in contravention of the 
formerly dominant theory of natural liberty. We have 
already seen that in accordance with this system it was 
considered advisable that prices should be left alto- 
gether to the play of free competition among buyers 
and sellers. It was presumed that under a regime of 

1 See W. H. Dawson, Protection in Germany, chap. ix. 



THE MODERN STATE 395 

unrestricted competition, the price of any article would 
be in proportion to the cost of producing it. For the 
attainment of the maximum economic efficiency, and 
for the satisfaction of the demands of social justice, it 
seemed necessary merely to leave people alone to buy 
and sell as they pleased at such prices as they should 
arrange between themselves. The essence of the posi- 
tion, however, lay in the assumption that there would 
be active competition among a number of persons pro- 
ducing the same article. The case is altered if we 
suppose the entire stock of any particular commodity 
in the hands of a single seller, or what is the same thing, 
in the hands of a group of sellers acting in concert. 
Where a person has a monopoly of the available stock 
of a commodity, there is no reason, in and of itself, why 
he should sell it at a price representing the cost of 
production, rather than at any other price. He is free 
to ask any price that he likes, subject always to the 
consideration that if he asks too high a price no one 
will buy the article he wishes to sell. When we come 
to inquire how prices will in such a case be settled, we 
find that a monopoly price follows a law quite different 
from that governing prices under free competition.^ 
The adjustment of a monopoly price may be explained 
as follows. The seller obviously cannot sell below the 
cost of production, because that would entail a direct 
loss. He must, therefore, sell at a price somewhere 
above the cost of production. But it is clear that the 
lower the price the greater will be the number of 
articles that he sells. The whole amount of his profit 

1 For the law of monopoly price, see R. T. Ely, Monopolies and 
Trusts. 



396 THE PROVINCE OF GOVERNMENT 

will depend, therefore, on two factors, the total number 
of sales and the amount of profit on each sale. As 
the price rises the number of buyers decreases, though 
probably not in a regular progression, but irregularly 
and in a jolting fashion. There will be found some- 
where in the upward scale a point of maximum profit, 
at which the product of the number of sales multiplied 
by the profit on each is greater than at any other point. 
Now this point may in some cases be far above the cost 
of production : for example, in the case of an article 
of prime necessity, — bread, sugar, oil, etc., — any one 
having a complete monopoly of the available stock 
could exact a price much in excess of the actual cost 
of production. 

In the economic situation of the earlier part of the 
nineteenth century, the monopolization of articles of 
ordinary production had not appeared to any great 
extent. The law of price applying to these conditions, 
though apprehended by the economists of the day, as- 
sumed no particular importance, nor did it seem to 
have any immediate bearing on public policy. But in 
our own day the possibility of monopolization of ordi- 
nary articles of production has become a significant 
factor in the industrial situation. To this, various causes 
have contributed. The increasing use of machinery ren- 
ders the initial cost of embarking on any industrial pro- 
cess constantly greater. The evolution of the principle 
of joint-stock undertakings has rendered it possible to 
carry on production on a very large scale, and in con- 
sequence to considerably reduce the cost of each article 
produced. This has rendered it very difficult for small 
concerns to compete with large industrial corporations. 



THE MODERN STATE 397 

and has set up in the industrial world a tendency to- 
wards the amalgamation of similar businesses under a 
common management. When this amalgamation has 
proceeded far enough to cover, or at any rate to domi- 
nate, the whole production of a certain class of com- 
modities, then the principle of competitive price-making 
no longer applies, and the law of monoply price comes 
into play. To prevent this state of things modern 
governments have seen fit in some instances to use their 
legislative power. This is particularly the case with the 
United States, where the process of industrial amal- 
gamation has been most rapid and has occasioned the 
greatest public apprehension. The federal government 
in 1890 passed an anti-trust law (known as the Sher- 
man Act) forbidding contracts or combinations in re- 
straint of interstate trade, prohibiting the monopoliz- 
ing of any part of the trade between the states, etc. 
About half of the states have legislated against the 
trusts, either by constitutional provisions or by statutes. 
A great deal of such legislation has, however, been de- 
clared invalid by the courts, or rendered inoperative 
by various kinds of evasion.^ 

A special case of the interference of the modern 
state in regard to prices is seen in legislation concern- 
ing railroad rates, which are of course prices charged 
for transportation of persons and freight. A little ex- 
amination will show that railroad rates differ from 
most other prices in a very peculiar way. We have 
seen that under free competition in the production of 
ordinary commodities their selling price will approxi- 

1 For anti-trust statutes, see Report of the U. S. Industrial Comvds- 
sion, vol. ii. See also Ernst von Halle, Trusts (edition of 1900). 



398 THE PROVINCE OF GOVERNMENT 

mate to the cost of production. Even where a single 
seller has a monopoly he will find no advantage in 
making sales below the cost of production. But in the 
case of a service performed by a railroad in transport- 
ing passengers or freight over a certain distance the 
*' cost of production " is of a quite different character, 
and stands in a quite different relation to the price 
demanded. In the first place we can see that there is 
very little, almost no expense incurred by the railroad 
for the particular transportation of any single article. 
Supposing that a train is scheduled to run between two 
stations, ten miles apart, the cost of sending a barrel of 
flour on it (the additional expense, that is, actually in- 
curred by taking that particular consignment) consists 
merely of the labor of two or three minutes' handling 
and an infinitesimal quantity of extra coal by reason of 
the extra weight added to the train. It must be noted 
in the second place that as between a distance of ten 
miles and a distance of one hundred miles the cost 
is practically the same, for only the same amount of 
handling is needed, and the other expense is insignifi- 
cantly small. There is of course the expense of run- 
ning the train itself (coal, wages, etc.). Very obviously 
some of the prices charged for the passengers and 
freight it carries must make this good or the train is 
being run at a loss. But there is no reason (none, that 
is, of an economic character, and apart from ideas 
of sentiment, justice, etc.) wliy this charge should be 
levied in a proportionate manner upon the different 
consignments. Suppose, for example, that the state of 
the cotton trade is such that consignments of cotton 
will be sent even if the railroad charges a high price, 



THE MODERN STATE 399 

and that the market for flour is such that no flour will 
be shipped except at a rate excessively low, it will 
clearly be to the advantage of the railroad to charge 
much for the one and little for the other. In other 
w^ords each of these two rates will be of the nature of 
a monopoly price, the limitation of the charge being 
found in that above a certain point the number of con- 
signments begins to fall off. Over and above the spe- 
cial expenses of running this individual train the rail- 
road has to meet its permanent and standing expenses 
ill the shape of the interest charge upon its original 
construction, and the cost of maintaining the roadbed 
and terminals. But there is no reason to assign these 
charges proportionately and uniformly among all the 
trains operated, and upon all the business handled. 
Each train and each consignment must of course repay 
the direct added cost which its operation entails. But 
above the extremely low minimum rate thus indicated, 
it is always worth while to accept business, even for 
a small charge where a larger cannot be had. In the 
practical levy of railroad rates it is therefore quite out 
of the question to distribute the total cost in a propor- 
tionate manner. Each service performed will be sold 
at a price representing " what the traffic will bear " 
and not what the traffic has cost. It will result in con- 
sequence that the different charges made by a railroad 
may be evidently and visibly out of proportion to their 
relative cost. It may happen that a greater charge is 
made for carrying a particular article a sliort distance 
than for carrying it a long one. Although at first sight 
this seems contrary to common sense and to common 
justice, it is quite in keeping with the principles we 



"400 THE PKOVINCE OF GOVERNMENT 

have just laid down. In transporting goods between two 
places five hundred miles apart a railroad may have to 
encounter the opposition of competing lines or of trans- 
portation by water, and may be compelled to accept a 
very low rate on the freight it carries. But at the same 
time there may very well be, included in this five hun- 
dred miles, a strip of one hundred miles which is not 
covered by any competing railroad, and which has not 
access to water transportation. As between the towns 
on this strip the charges that the " traffic will bear " 
are very likely greater than the utmost charge that can 
be levied on the through traffic of five hundred miles.^ 
There is a further peculiarity in the economic situa- 
tion of railroads in the fact that active and permanent 
competition between them is practically impossible. A 
state of keen competition induces the roads to reduce 
charges to a point which, while covering the actual and 
individual cost of the train service, makes no provision 
for the permanent interest and maintenance charges of 
the railway. In such a situation a poor road — particu- 
larly one whose interest charges are already in default, 
or which is even in the receiver's hands — is a stronger 
competitor than a good one, for it can indulge in a 
more reckless and suicidal rate-cutting. In practice, 
therefore, railroads have always found themselves com- 
pelled to enter into agreements, express or tacit, as to 
the regulation of their rates. From the point of view 
of the general public such understandings look very 
much like a combined attempt on the part of the roads 
to exploit the community for their own benefit. 

1 For the theory of railroad rates see A. T. Hadley, Bailroad Trans- 
portation. 



THE MODERN STATE 401 

The distinctive position which the railroads thus 
occupy in the industrial world has induced all modern 
governmentjf to subject them to special regulation, and 
to entirely abandon in reference to them the principle 
of non-interference. In some cases, as in Prussia, Aus- 
tria, Hungary, the states of the Commonwealth of 
Australia, etc., the state itself owns and operates the 
railroads. In France charters are granted to private 
companies for limited periods, after which the roads 
revert to the state. The chief railroad systems of the 
country (some 20,500 miles of road out of a total 
25,500) will become national property between the 
years 1950 and 1960. Even while the roads are in 
private hands their general relation to the state is very 
different from that of ordinary business enterprises. 
A large part of the original permanent cost was de- 
frayed by the French government ; the government 
also guaranteed the payment of a fixed dividend. In 
return the rates are fixed by the government itself, and 
the transportation of tlie mails, troops, prisoners, etc., 
is made gratuitous. In the United States, although the 
railroads ^ have been left in private hands, they have 
been the object of special legislative control of both 
the state and the federal governments. The Interstate 
Commerce Act (1887) provides that in the case of 
charges levied on commerce between the states, no rail- 
road company shall unduly discriminate in favor of 
particular persons or particuhir localities. The same 
law forbids the railroads to charge more for transporta- 

^ A full account of the railroad question in the United States is 
found in Professor Emory Johnson's American Railway Transporta- 
tion. 



402 THE PROVINCE OF GOVERNMENT 

tion for a shorter than for a longer distance over the 
same line, and prohibits the pooling of railroad earn- 
ings. The statute also establishes an interstate com* 
merce commission of five members appointed by the 
President of the United States ; it is the dut}^ of this 
body to supervise the operation of the act, but it has 
no power of itself to punish violations of its provisions 
or to fix rates. The provisions of the federal anti-trust 
statute of 1891 have also been applied by the courts 
against the railroads in regard of various forms of 
combination that were presumed to be in restraint of 
commerce between the states. In addition to the na- 
tional legislation most of the states have passed laws 
intended to prevent discrimination in freight and pas- 
senger rates, and to hinder undue combination. In 
most states also railroad commissions are established, 
in some cases with duties that are mainly advisory and 
statistical, but in others with coercive powers for the 
making and enforcing of rates. The Massachusetts 
board of railroad commissioners is an example of the 
first class ; it supervises the operation of the law in 
reference to the issue of securities, receives reports 
from the railroad companies, and has an advisory power 
in regard to freight and passenger rates. In practice 
its recommendations have great force, and are usually 
followed by the roads themselves or embodied in stat- 
utes of the legislature. On the other hand, commissions 
such as those of Minnesota and of Illinois are given 
power to directly fix rates for traffic within the state.^ 

1 It has been laid down by the United States Supreme Court that 
an exercise of power of this kind — the making- of a rate by the com- 
mission itself — must be subject to revision in the courts. 



THE MODERN STATE 403 

In the United Kingdom there is also a commission for 
the supervision of the operation of railroads, estab- 
lished in 1873, and rendered permanent by an act of 
Parliament of 1888. The schedule of maximum rates 
of each railroad is subject to the approval of the Board 
of Trade. Pooling is not prohibited, but discrimination 
is against the law. 

5. Grovernment Interference on Behalf of the 
Working Class ; Factory Laws, State Insurance, 
and Pensions. The attitude of modern governments 
towards the laboring class is in many respects no longer 
one of unqualified individualism. The general recog- 
nition of the idea of social solidarity and of aggre- 
gate social duties towards the workers and the poorer 
members of the community has profoundly influenced 
the legislation of our day. The original factory acts 
adopted in England, to which reference has been al- 
ready made, have been imitated in all the great indus- 
trial countries, and expanded into an elaborate code 
designed to protect the wage-earner against the rigor 
of unrestrained competition. Legislation of this kind 
in the United States falls under state and not under 
federal jurisdiction. There are still many states of the 
Union in which, factory industry being but little de- 
veloped, no protective statutes have been passed. But 
in Massachusetts, New York, Pennsylvania, Ohio, In- 
diana, Illinois, and all the great manufacturing states, 
factory legislation of a thorough -going character has 
been adopted. The factory acts of these states prohibit 
working people from being employed under conditions 
dangerous to health or life. They contain provisions 
for fire-escapes, prevention of explosions, fencing of 



404 THE PROVINCE OF GOVERNMENT 

machinery, ventilation, etc., and provide for the ap- 
pointment of inspectors to supervise the operation of 
the acts. The hours of labor in the case of women and 
young persons are also limited by law. The labor of 
adult women is restricted in all the New England 
states (except Vermont) and in about ten other states ; 
a ten-hour day is the usual limit prescribed. All the 
manufacturing states have legislated against excessive 
hours for young persons (of either sex) and have abso- 
lutely prohibited factory labor for children. In Massa^ 
chusetts. New York, and several other states only 
children of at least fourteen years of age may be em- 
ployed ; in other states employment is permissible at 
lower ages. In England, under the general factory law 
of 1901, similar restrictions on industrial freedom of 
contract are imposed by the government, both the con- 
ditions of work and the permissible hours for employ- 
ment of women, young persons, and children being 
made the subject of legislative interference. The Ger- 
man imperial government adopted in 1891 a factory 
act of similar scope. In the United States, Great 
Britain, and Germany legislation has not as yet limited 
the hours of employment of adult males ; but in France 
and in Austria the law regulates the number of hours 
that even adult males may be employed in factory 
labor, eleven hours a day being assigned as the limit 
in Austria, and twelve in France. 

The altered attitude of the state towards the working 
class is seen also in the systems of compulsory insu- 
rance and old-age pensions, now operative in various 
countries of continental Europe, and in certain Austra- 
lasian colonies. In Germany an imperial law of June 



THE MODERN STATE 405 

15, 1883, provides for compulsory insurance against 
illness for all working people whose wages do not ex- 
ceed $476 a year, the expenses of the insurance being 
imposed jointly on working people and employers, the 
former paying two thirds, the latter one third of the 
cost. A similar law of July 6, 1884, prescribes com- 
pulsory insurance against accidents. In each of these 
cases the government itself contributes nothing ; but for 
the compulsory old-age pensions, established under an 
imperial statute of 1889, the government contributes 
yearly towards each pension a fixed sum of $11.90 over 
and above the amount accruing from the past contribu- 
tions of the workingmen and their employers. France 
and Austria have also instituted compulsory state in- 
surance against accidents (in Austria against illness 
also), and Italy, under a statute of 1899, has state in- 
surance both against disability and old age. The colony 
of New Zealand, by a law of 1898, established a system 
of old-age pensions (with a maximum of £18 per an- 
num) to be accorded by the government to persons of 
sixty-five years of age who had resided thirty -five years 
in the colony, no previous contribution being exacted 
from the recipient. Persons possessing an income from 
other sources are not eligible, or only eligible as pen- 
sioners to the extent that their income falls short of 
the pension. The tendency of the governments of the 
Australian colonies to interfere vigorously on behalf of 
the working class is seen in the New Zealand statute 
of 1894, applying compulsory arbitration to labor dis- 
putes, and in a similar statute of South Australia 
enacted in the same year. 

Even the most extreme individualists admitted that 



406 THE PROVINCE OF GOVERNMENT 

the protection which it was the primary duty of the 
state to afford to the citizen did not merely include 
safeguards against physical violence and forcible rob- 
bery. Protection of an indirect character, intended to 
prevent fraud or culpable negligence, was admitted to 
be within the proper sphere of the state action. But 
in the course of the nineteenth century the category of 
legislation of an indirectly protective character has been 
enormously expanded. Such familiar examples as adul- 
teration acts in reference to food, acts in reference to 
the inspection of steamboats and buildings, the grant- 
ing of certificates to engineers, druggists, etc., will at 
once suggest themselves in this connection. Prohibi- 
tion acts in restraint of the manufacture or sale of in- 
toxicating liquors, acts in restraint of public gambling, 
etc., represent the same legislative principle carried to 
a further degree. In practice, the line is extremely 
difficult to draw between protective legislation — whose 
intention is to guarantee the individual against exter- 
nal harm and to prevent him from harming others 
— and paternal legislation, whose object is to compel 
him in a positive direction for his own good. The atti- 
tude of most modern governments is not clearly defined 
in this respect ; but there is a large amount of mod- 
ern legislation which is practically of a paternal char- 
acter. 

6. Municipal Control. Mention may be made in 
conclusion of the wide extension of state activity seen 
in the sphere of modern municipal control. Under pre- 
sent conditions the supply of water and light to towns 
and cities and the arrangement for interurban trans- 
portation, telephone communication, etc., offer problems 



THE MODERN STATE 407 

of a peculiar character. To a great extent these ser- 
vices are in their nature monopolies ; they must be 
under a single control, and cannot, or at any rate can 
only at an economic loss, be performed for the com- 
munity by rival purveyors. Separate telephone systems, 
separate gas and water companies, with parallel pipes, 
separate car lines upon the same streets, are plainly 
impracticable. On the other hand, where these enter- 
prises are placed unreservedly in private hands, the 
principle of monopoly price, as already explained, as- 
serts itself to the detriment of the general public. It is 
necessary, therefore, either that the public authorities 
should themselves directly perform these services for 
the community, or that the grant of privileges accorded 
to a monopoly company should be accompanied by spe- 
cial restrictions and special regulation of the prices 
to be charged. A brief summary of the present extent 
of municipal ownership may serve to show how greatly 
the functions of the local organs of government have 
been expanded under recent conditions. The control 
of waterworks is the most universal of all municipal 
activities. Of the thirty-eight cities of the United 
States having, under the census of 1900, a population 
over one hundred thousand, all except eight owned 
their own waterworks in 1903. In this majority are 
included the cities of New York, Chicago, Philadelphia, 
and Boston. In Canada more than three quarters of 
the towns and cities (including Montreal and Toronto) 
own their waterworks. In the United Kingdom the 
municipal ownership of waterworks is almost universal, 
and in the continental cities of Europe it is the usual 
rule. Very few gas works in the United States are 



408 THE PROVINCE OF GOVERNMENT 

under municipal operation, but the larger British cities 
(except London, Liverpool, and Dublin) and most Ger- 
man cities operate their own gas plants. In the case 
of street railways municipal ownership is very rare in 
America, but has been adopted in about forty places 
in Great Britain, including London and Manchester. 
Municipal electric-lighting plants are extremely com- 
mon in the United States, being found in Chicago, 
Detroit, and elsewhere, though ownership and opera- 
tion by private companies is much more usuaL In the 
United Kingdom, on the other hand, the majority of 
electric-lighting plants are operated by the municipali- 
ties. Telephone service is rarely found under munici- 
pal management, though in some cases, as in Japan 
and in Australia, it is directly conducted by the gen- 
eral government. Rarer examples of collective activity 
are seen in municipal house-building, sale of electric 
power, etc. It is, of course, impossible to enter here 
into the discussion of the economic advantages or dis- 
advantages of municipal ownership. Reference is only 
made to it in this connection to illustrate the greatly 
widened sphere of state control characteristic of the 
present era.^ 

READINGS SUGGESTED 
Leroy-Beaulieu, P., The Modern State (translation, 1891), books 

i, ii. 
Hobson, J., Evolution of Modern Capitalism, chaps, iii, iv, v. 
Jenks, J. W., The Trust Problem (1901), chaps, iv, x, xi. 
Johnson, E., American Railway Transportation (1903), chap. 

xxix. 

^ For further details see New International Encyclopedia, article 
" Municipal Ownership ; " Report of United States Commissioner of Labor, 
1900; Darwin, Municipal Trade (London, 1903). 



THE MODERN" STATE 409 

FURTHER AUTHORITIES 

Von Halle, E., Trusts (1900). 

Taussig, F. W., Tariff History of the United States (5th edition, 
1901). 

Ashley, P., Modern Tariff History (1904). 

Dawson, W. H., Protection in Germany (1904). 

Ely, R., Monopolies and Trusts (1900). 

Report of U. S. Industrial Commission (1900-02). 

Hoffman, F. S., The Sphere of the State (3d edition, 1898). 

Bemis, Municipal Monopolies (1899). 

Carey, Municipal Ownership of Natural Monopolies (1900). 

Report of U. S. Commissioner of Labor : Water, Gas and Electric 
Light Plants under Private and Public Ownership (1899). 

Willoughby, W., Workingmen's Insurance (1898). 

New Zealand Year Book (annual). 

Bulletin of U. S. Bureau of Labor. Government Industrial Arbi- 
tration (1905). 

Sidgwick, H., Principles of Political Economy (1883), book iii. 



INDEX 



AcH.^AN League, 235. 

Administrative courts, 216, 217; 
origin in France, 217. 

Administrative law: in refer- 
ence to separation of powers, 
151; nature of, 216; opera- 
tion in France, 217. 

Agreement of the People, 128. 

Alabama claims, 105; consti- 
tution of, 132. 

Alexander VI (Pope), 104. 

Amendment of Constitution, 
130, 131; Switzerland, 136. 

American Revolution, v. Revo- 
lution, American. 

Analytical school, 58, 59. 

Anson, Sir W., on legisative 
procedure, 156. 

Anti-federalists, 338. 

Arbitration, International, v. 
International Arbitration. 

Aristotle, 25; on patriarchal 
theory, 43; cycle theory, 46; 
cycle of government, liO. 

Arrondissement, 299. 

A.ssessment, v. Local Taxation, 
Property Tax. 

Austin, view of sovereignty, 54; 
on International Law, 102. 

Australia, federal powers in. 252; 
constitution of, 2.52, 253. 

Australian Constitution, pro- 
visions for deadlock, 174. 

Bagehot, W., on separation of 
powers, 148 ; on legislative 
procedure, 155. 

Ballot, double, 348. 

Bastiat, F., 364. 

Bellamv. E., 377. 

Bentham, Jeremy, criticism of 
social contract, 31. 

Bicameral svstem, 159 et seq.; 



Lecky on, 160 ; prevalence 
of, 160; reasons for, 161. 

Blackmar, Professor, on Span- 
ish colonial system, 263, 264. 

Blackstone on separation of 
powers, 143. 

Blair, Chancellor, 213. 

Bluntschli, J. K., criticism of 
social contract, 31 ; view 
of sovereignty, 55; classifi- 
cation of states, 116. 117. 

Boston, government of, 30'ife 

Bourinot, Sir J., on treaty- 
making power, 281. 

British North America Act, 
249. 

Bryce, J., on sovereignty, 62; 
on legislative procedure, 156. 

Bundesrath, German, 167; powd- 
ers of, 171; Switzerland, 183. 

Burgess, on sovereigntv, 53; 
on federal states, 237, 238. 

Cabinet, British, 144, 145; de- 
scription of, 148; its evolu- 
tion, 192-194. 

Cabinet government, distin- 
guished, 118, 122, 191 etseqq.; 
in France, 195; in Italy, 197. 

Canada, senate of, 160; power 
of courts, 214; federal pow- 
ers in, 249. 

Caracalla, 18. 

Carlyle, T., on doctrine of 
laissez faire, 368. 

Casa de Contratacion, 264. 

City Government, U. S., 306. 

Civil Service Act, 204. 

Civil Service, British, 200, 201; 
U, S., 202, 203. 

Chamber of Deuptic^s, parties 
in. 351. 

Charlemagne, 94. 



412 



INDEX 



Charters, colonial, 126. 

Church, relation to Holy Ro- 
man Empire, 94. 

Closure in House of Commons, 
159; in U. S. Senate, 158. 

Colonial Government, v. Col- 
onies. 

Colonial policy, British, 265 ; 
British in nineteenth century, 
271 et seqq.; French, 265. 

Colonies, government of, 258 
et seqq.; area of, 258; methods 
of acquisition, 259, 260; of 
ancient world, 261; in Amer- 
ica, 264 et seqq.; self-gov- 
erning, 272 et seqq.; future" 
of British, 273 et seqq.; pres- 
ent British system, 276, 277; 
crown, 277 ; representative, 
279; responsible, 279; rela- 
tion of British to home gov- 
ernment, 280; recent colo- 
nial expansion, 285; France, 
285, 286; Germanv, 286, 
287; U. S., 287. 

Comitia Tributa, 175. 

Committee of Public Safety, 
183. 

Common faith, not a requisite, 
19. 

Common law, 61. 

Commons, House of, procedure, 
156, 159; closure, 159; con- 
stitutional powers of, 169, 
172. 

Commune, 299. 

Compact, governmental, 27. 

Confederacy, Southern, 237. 

Confederation, Articles of, 236, 
246. 

Congress, Continental, 236 ; 
powers of U. S., 247, 248. 

Constantine, 94. 

Constitution, 121 et seqq.; writ- 
ten, 123-126; relation to 
courts of law, 130, 131; 
amendment of, 130, 131; 
scope of, 132 et seqq.; of Ala- 
bama, 132; of Switzerland, 
133; made by convention, 
136; provisions in state con- 
stitutions for direct legisla- 



tion, 179; U. S., interpreta- 
tion of by the courts, 255. 

Constitutional law, 133, 134, 

Constitutional monarchy, 185, 
186. 

"Contrat Social," 29. 

Convention, 342. 

Council of Four Hundred, 175. 

County, U. S., 302 et seqq. 

Courts of law, power to inter- 
pret constitution, 213. 

Crown colonies, 277. 

Cycle, the Aristotelian, 46. 

Dante, on the papacy and em- 
pire, 94. 

Declaration of Paris, 98. 

Declaration of the Rights of 
Man, 74. 

Democrats, 339, 340. 

Democracv, progressive growth 
of, 50, 51. 

Department, French, 299, 312. 

Departments of executive gov- 
ernments, 199 et seqq.; table 
of, 206. 

Dicey, A. V., on sovereigntv, 
64, 65. 

Dicey, E., definition of con- 
stitution, 121; on respon- 
sibility of executive officers, 
211. 

Direct legislation, 174 et seqq. 

Direct nomination, 348, 349. 

Divine origin of state, 34. 

Disraeli, on colonial policy, 274. 

Ecclesia, 175. 

Education Act, England, 310. 

Electorate, 207 et seqq. 

Embargo, 256. 

England, colonial policy of, 
265; local government in, 
308; local government in, 
308 et seqq. 

Erfurt, congress of, 380. 

Esprit des Lois, 143. 

Executive (branch of govern- 
ment), 142; the, 181 et seqq.; 
plural executives. 183; state 
governments of U. S., 198; 



INDEX 



413 



hereditary, 184-186; elected, 
186 et seqq.; responsibility to 
the courts, 211. 
Executive power, distinguishedj 
141. 

Factory acts, 368, 369. 

Factory laws modern, 403, 
404. 

Federal government, distin- 
guished, 118, 233 et seqq., 
Greek federation, 235; classi- 
fication of, 239; distinguished 
from confederacy, 239; sov- 
ereignty in, 240; distribution 
of federal power, 244-246; 
U.S., 247-249; Canada, 249; 
German Empire, 250. 

Federalist, on separation of 
powers, 146. 

Federalists, 338. 

Filmer, Sir Robert, 35. 

Finance Bill of 1909, 173. 

Finley, Sir Robert, on inter- 
national arbitration, 108. 

Fiske, J., on separation of 
powers, 153. 

Force, theory of, 35. 

France, cabinet government 
in, 195; colonial policy of, 
265; recent colonial expan- 
sion of, 285, 286; local gov- 
ernment in, 311, 312. 

Free trade, 366 ; critique of, 388. 

Freeman, W., on Acha?an 
league, 235. 

French Revolution, illustrating 
cycle of government, 114. 

Fundamental Orders of Con- 
necticut, 127. 

Fundamental Statute of Italv, 
129. 

General council, 312. 

German Confederation, 237, 
246. 

German Empire, federal pow- 
ers in, 2.50. 

Germanv, ministers, 196; courts 
in, 215; federal units of, 243; 
recent colonial expansion, 
286, 287. 



Gierke, on organic theory, 86. 

Gotha, congress of, 380. 

Government, distinguished 

from state, society, and na- 
tion, 16 et seqq.; province of, 
357 et seqq. 

Governmental compact, 27. 

Greece, colonies of, 261. 

Greeks, international relations 
of, St2. 

Gregory VII, 36. 

Grotius, on international law, 
95, 96. 

Group system, of party gov- 
ernment, 350, 351. 

Gumplowitz, on organic theory, 
86. 

Hague tribunal, 106, 107. 

Haller, L. v., on origin of 
government, 38, 39. 

Hare, T., on representation of 
minorities, 229. 

Hawaii, 287. 

Hereditary executives, 184. 

Hobbes, T., 27; on external re- 
lations of states, 89. 

Holland, T., 14. 

Home Rule Bill, 159. 

Holy Roman Empire, 18. 

House of Commons, v. Com- 
mons, House of. 

House of Lords, v. Lords, House 
of. 

Hovas, 45. 

Humboldt, W. von, on scope 
of government, 360, 361. 

Hume, David, criticism of 
social contract, 31. 

Hungarv, nature of constitu- 
tion, 122, 123. 

India, govornmont of, 282. 

Individualism, 357 ef seqq.; in 
U. S., 361; J. S. Mill on, 362. 

Industrial commission, on pro- 
perty tax, 329. 

Industrial revolution, 363. 

Initiative, 174 et seqq. 

Instrument of govornmont, 128. 

Insurance, state, 404, 405. 

International arbitration, 104 



414 



INDEX 



et seqq. ; examples of, 105; 
treaties respecting, 107, 108. 

International law, 90, et seqq.; 
definition of, 90, 91; modern 
period of, 95; scope of, 99; 
of peace, 100; propriety of 
the term, 100. 

International relations, divi- 
sion into three periods, 91. 

Interpellation, 351. 

Imperial federation, 283-285. 

Iron Law of Wages, 373. 

Italy, senate of, 166; cabinet 
system of, 197. 

Jackson, Andrew, 203, 339. 

Jellinek, G., definition of his- 
tory, 8; classification of fede- 
ration, 239. 

Jenks, E., on patriarchal theory, 
44; military origin of the 
state, 48; on government of 
Victoria, 174. 

Johnston, President, 203. 

Judges, tenure of British, 209; 
tenure of U. S., 209; France, 
209; Prussia, 209. 

Judicial power, distinguished, 
141. 

Judiciary, 207 eisegg.; functions 
of, 207, 208. 

Jus Feciale, 93. 

Jus Gentium, 93. 

Justice of the Peace, England, 
308, 309. 

Kant, view on social contract, 
33; on individualism, 360. 

Laissez faire, doctrine of, 363; 
Carlyle on, 368, 369. 

Eandesgemeinde, 175. 

Lassalle, F., 380. 

Eaw, nature of, 53; sources 
of, 62; international, v. In- 
ternational Law; of nature, 
96 ; constitutional, v. Con- 
stitutional Law; administra- 
tive, V. Administrative Law. 

Lawrence, T. J., on interna- 
tional law, 91. 

Lecky, on bicameral system. 



160; on colonial policy, 268, 
270. 

Legislative power, distin- 
guished, 141; Story on, 142. 

Legislature, 154 et seqq.; num- 
ber of members, 155; proce- 
dure, 155. 

Leviathan, 27. 

Liberty, 71, etseqq.; different 
meanings of, 72; natural, 72; 
civil, 74; constitutional, 76; 
national, 76; in the U. S., 
77 ; in Great Britain, 78 ; in 
France, 78. 

License taxes, 330. 

Lieber, F., on liberty, 73. 

Local government, 292 et seqq. ; 
distinguished from central, 
293-295; areas of, 296 et 
seqq.; United States, 298; 
France, 299; Saxon, 300; 
local autonomy, 301 et seqq. ; 
England, 308; Saxon, 310; 
France, 311, 312; Prussia, 
315. 

Local taxation, U. S., 316 et 
seqq. ; England, 321-323 ; 
France, 323-325; Prussia, 
326, 327; reform of, 328 et 
seqq. 

Locke, J., 27. 

London, government of, 311. 

Lords, House of, British, 163, 
164; powers of, 170; consti- 
tutional powers, 170, 172. 

Lords, House of, Prussian, 164. 

Lowell, L., on separation of 
powers, 152, 153 ; on Swiss 
federal government, 251 . 

Louisiana purchase, 256, 260. 

Madison, President, 203. 
Maine, Sir H., criticism of Aus- 

tinian School, 58 et seqq. 
Malthus, R., 364. 
Marshall, Chief- Justice, 99; on 

implied powers, 256. 
Marx, theory of origin of the 

state, 48; doctrines of, 372. 
Massachusetts, charter of, 126, 

265. 
Matriarchal theory, 42. 



INDEX 



415 



May, Sir T. Erskine, Lord Farn- 

borough, on origin of parties, 

336. 
Mayflower, 32. 
Mayflower Covenant, 127. 
M'Kechnie, on sovereignty, 64; 

on organic theory, 82. 
McLennan, J. F., on matriarchal 

theory, 43. 
Mill, J. S., on women's rights, 

226. 
Minorities, representations of, 

228 et seqq. 
Mohl, classification of states, 

117. 
Montesquieu, classification of 

states, 116; on separation of 

powers, 143. 
Morris, Gouverneur, on Consti- 
tuent Assembly, 155. 
Municipal ownership, 406-408. 

Nation, distinguishedfrom state, 
society, and government, 16 
et seqq. 

National convention, 343. 

Nature, state of, 23, 30; law of, 
96. 

Navigation acts, 266; repeal of, 
365. 

Neutral commerce, 97. 

New England federation, 244. 

New York, government of, 
307. 

Nomination v. Direct Nomina- 
tion. 

Octroi, 324, 326. 

Odgers, Dr. W., on areas of 

local government in England, 

300. 
Origins of state, 22; divine 

origin of state, 34. 

Paine, T., on hereditary princi- 
ple, 163. 

Papacy, relation to Holy Ro- 
man Empire, 94. 

Paris, treaty of, 1763, 97. 

Parhament, (British; sovereign- 
ty of, 57, 66; supremacy of, 
212. 



Parliament Act of 1911, 174. 

Parliamentary government, dis- 
tinguished, 118, 191 et seqq. 

Parish, England, 310. 

Parties, political, organization 
of in U. S., 340 et seqq. ; v. 
also Party Government in 
Great Britain, 348, ' 353; 
France, 351; Germany, 352. 

Party government, 322 et seqq. ; 
Goldwin Smith on, 334; ra- 
tional basis of, 333, 334; 
origins in England, 336; ori- 
gins in U. S., 338; continen- 
tal Europe, 350, 351. 

Patriarca, 35. 

Patriarchal theory, 42. 

Peace conference, 106, 107. 

Peerage, of United Kingdom, 
163; Irish, 164; Scotch, 164. 

Pensions, old age, 404, 405. 

Philippines, cession of, 260; 
government of, 288-290. 

Plantation covenant, 32, 127. 

Plato, 25; cycle theory, 47. 

Political science, definition of, 
3; scope of, 4, 5; relation to 
history, 6, 7; relation to polit- 
ical economy, 8. 

Political sovereignty, criticism 
of, 67 et seqq. 

Pollock, Sir F., on development 
of law, 103. 

Polybius, on separation of 
powers, 143. 

Populist party, favors direct 
legislation, 180. 

Porto Rico, 288. 

Portugal, colonial expansion of, 
263. 

Prefect, 312, 313. 

President U. S., 187; term of 
office, 190. 

President, France, 189, 191. 

Presidential government, 191 
et seqq. ; in Italy, 197. 

Primary, 342; primary law, 
346, 347. 

Property tax, 317-319. 

Proportional Representation, 
230-232. 

Protection, theory of, 389 et 



416 



INDEX 



seqq.; modern protective tar- 
iffs, 393, 394. 

Proudhon, 376. 

Prussia, ministers, 196; method 
of voting in, 231; local gov- 
ernment in, 315. 

Quebec Act, 271. 

Radicalism, 384. 

Railroad Legislation, 394 et 
seqq.; rates, 399, 400; com- 
missions, 402. 

Recall, 180b et seqq. 

Referendum, 174 et seqq. 

Reform acts; Act of 1832, 223; 
Act of 1867, 223. 

Reichstag, parties in, 352. 

Representation of the People 
Act, 223. 

Representative colonies, 279. 

Republicans, 339, 340. 

Responsible government, dis- 
tinguished, 118; in British 
colonies, 273. 

Revolution, American, 268 et 
seqq. 

Ricardo, D., 364. 

" Rights of Man," 74, 163. 

Ritchie, D, G., on sovereignty, 
64, 68. 

Rogers, Sir F., on colonial 
pohcy, 273. 

Rousseau, J. J., 27, 73; classifi- 
cation of states, 116. 

Salisbury, Lord, on interna- 
tional law, 100. 

SchafHe, A., on organic theory, 
82 et seqq.; criticism of or- 
ganic theory, 86, 87. 

School district, England, 309, 
310. 

Secretary of State, U. S., 199. 

Seeley, J. R., 7. 

Separation of powers, influ- 
ence in America, 145; in 
Massachusetts constitution, 
145; in federal Constitution 
of U. S., 146; influence in 
France, 147; adopted by 
Constituent Assembly, 147; 



in French constitution of 
1795, 147; in existing gov- 
ernments, 148; analyzed by 
Bagehot, 148; absent in 
French government, 149; ab- 
sent in Italian government, 
149; criticism of, 151; pro- 
cedure, 155. 

Self-government, granted to 
British colonies, 272, 279; 
local, 309. 

Senate, Canada, 166; Italy, 
166; Cuba, 167; Brazil, 167; 
French, 168; powers of U. S., 
170; powers of Canadian, 
171; relation to cabinet in 
France, 195. 

Smith, Adam, 364. 

Smith, Goldwin, on direct legis- 
lation, 176; on U. S. Con- 
stitution, 241. 

Social contract, 22 et seqq. 

Social Democrats, v. Socialism. 

Socialism, 371 et seqq.; pro- 
gramme of, 375; in German}^, 
378 et seqq.; France, 382; 
England, 382, 383; U. S., 383. 

Socialist party in Prussia, 231. 

Society, distinguished from 
state, government, and na- 
tion, 16 et seqq. 

South Africa, 281, 282. 

Sovereignty, 52 et seqq.; loca- 
tion of, 56 et .seqq.; in British 
Empire, 56, 57; in U. S., 57, 
58; in France, 58; political, 
63; dual or divided, 69; in 
federal government, 240. 

Spain, colonial system, of, 262, 
263. 

Sparta, kings of, 183. 

Spencer, H., origin of govern- 
ment, 36; an organic theory, 
82 et seqq.; on scope of govern- 
ment, 366; criticism of organic 
theory, 86, 87. 

Spoils System, 203. 

State, analysis of, 12, 13; defi- 
nition of, 15; distinguished 
from society, government, 
and nation, 16 et seqq.; ideal, 
20; origin of, 22; of nature, 



INDEX 



417 



23, 30; diyine origin of, 34; 
external aspect of, 89 et seqq.; 
organic theory of, 79 ; form of, 
110 et seqq.; Aristotle's clas- 
sification, 110, 111; table of 
classification, 120; despotic, 
119; democratic, 119; modern 
functions of, 386 et seqq. 

Stephen, Sir James, on sover- 
eignty, 61. 

Story, on legislative power, 142. 

Suffrage, 218 e^ seqq.; universal, 
218, 219; British, 219; in 
Revolutionary France, 229 ; 
French, 221; German, 221; 
U. S., 221; woman, 222, 225, 
226; negro, 227. 

Switzerland, constitution of, 
133; direct legislation in, 177, 
178; courts in, 215; history 
of its federation, 235; as a 
confederacy, 241; federal 
powers in, 250, 251. 

Tariff, colonial, 280, 281; in- 
sular tariff question, 290. 

Tasmania, system of voting in, 
231. 

Taxation, v. Local Taxation, 
Property Tax, etc. 

Theory of force, 36. 

Tories, 337. 

Town meeting, 178, 302, 303, 
305. 



Towns, government of, v. City. 
Township, U.S., 302 et seqq. 
Trajan, 94. 

Treatise on government, 29. 
Treaty of Washington, 98. 
Trust legislation, 394 et seqq. 

Unicameral legislatures, 160. 

Unit Rule, 343. 

Unitary government, distin- 
guished, 118. 

United States, federal powers 
in, 247-249; dependencies, 
287; local government in, 
296; local taxation in, 316. 

Upper houses of legislatures, 162 
et seqq. 

Uri, 177. 

Utrecht, treaty of, 97. 

Vote, t'. Suffrage. 

Wages, Iron Law of, 373. 

Walker, on Jus Gentium, 93. 

Washington, treaty of, 98. 

Westphaha, peace of, 91, 92, 95. 

Westphalia, treaty of, 236. 

Whigs, British, 337; U. S., 339. 

Wilson, W., on nature of law, 
63; on cycle of government, 
113. 

Woman Suffrage, v. Suffrage. 

Woolsey, T., definition of con- 
stitution, 121. 



JUN 23 1913 



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